In some scenarios, involving a neutral third party to see if a settlement can be reached can resolve a legal issue.
That process is called mediation.
It can happen at any point – even before a lawsuit gets filed and even right up until trial. And it’s a non-binding meeting, which means the outcome cannot be enforced unless agreed upon by all involved parties.
Both parties can agree to try mediation, or a court can order one.
The litigation continues – including discovery, depositions and other preparations – unless the parties agree to bring it to a halt during the mediation process.
Attorney Anthony Simon says halting the litigation process during a mediation is rare, and he would not recommend it. “If a settlement is not reached, and the parties agreed to pause the litigation process, that time is lost and may result in a delayed trial date,” Simon said.
“If a settlement is not reached, and the parties agreed to pause the litigation process, that time is lost and may result in a delayed trial date,”
The process essentially allows each side to present their case to the mediator and the other side. The mediator tries to get the parties to meet in the middle.
Simon says the mediation process is usually the only time he ever gets to talk to the other side directly without his message being filtered by opposing counsel.
Mediation can be used to settle one or several parts of a dispute, or it can be used to come up with a complete settlement of all issues, according to the Missouri Bar.
It can also happen at any point in the proceedings of a settlement negotiation or a litigated case. For example, different aspects of the litigation process, such as a motion to compel discovery, can be mediated.
There are advantages and disadvantages to this process.
| Pro: | Con: |
|---|---|
| Mediation can resolve a matter without going to court. | There is no formal discovery process, so typically, mediation is better after some discovery is exchanged. |
| Mediation allows the parties to decide how a lawsuit is resolved as opposed to a Judge or jury. Typically, with a judge or jury, one side wins, and the other loses. In mediation, both sides usually get something in order to settle the mediation. | Mediation requires compromise and any settlement usually results in each party getting less than they would if they won at trial. |
| All of the upsides of mediation relate to getting a settlement you choose and avoiding the uncertainties of trial and appeal. | The only real downside is if you settle, you usually have to compromise. But again, it is your decision to settle. You don’t have to. |
| Both sides of a legal issue reach a resolution if there is one, so participants in mediation are vested in the resolution because they shape it together. | You can end up in court after all if either party fails to comply with the agreement. In that case, a motion to enforce the settlement is filed, and the Court decides whether a settlement has been reached. |
There are three possible outcomes in a mediation:
- The parties reach an agreement, and the case is settled.
- The mediator declares an impasse if the parties are too far apart.
- The mediator, with the parties’ consent, continues the mediation session later in the case, usually after the case progresses.
The role of the mediator:
Those who participate in mediation can, at any time, consult with other professionals to discuss options. Whenever a resolution is reached, participants should seek the advice of their attorney to review any proposed agreement. The mediator does not offer legal advice or make decisions for the participants or the entire process.
Confidentiality:
Missouri law protects the confidentiality of the mediation process, and nothing that happens at the mediation can be used in Court with some exceptions.
Unreported child abuse or threats of serious harm are not protected.
Court-ordered mediation for civil cases in general and family law cases also protects what is discussed during the mediation process as confidential settlement negotiations, so the negotiations cannot be used at trial if a settlement is not reached.
