FAQs

• General Questions About Mediation
• Questions About Business Mediation
• Questions About Family/Elder Mediation

General Questions About Mediation

Mediation vs. Litigation vs. Arbitration

Going to court, commonly called litigation, may decide the dispute, but the process can be time consuming, expensive and emotionally draining. Fees may escalate well beyond the original estimate, and the time it takes to reach a decision in our busy courts can be months or even years, sometimes putting all other plans on hold. Many times, relationships suffer from the pressure. In considering all these circumstances, exploring options other than litigation can be a worthwhile pursuit.

In mediation, a neutral third party called a "mediator" helps participants in the dispute create their own resolution. Unlike an arbitrator, the mediator makes no decision or findings about the facts of the case and makes no award. Rather, the mediator helps facilitate a discussion in which the parties reach a mutually agreed upon settlement. Therefore, mediation allows for more creative resolutions to disputes than other ADR processes. To accomplish this, mediators foster communication among the parties to:

• clarify issues, interests and needs;
• explore the merits of each party's positions;
• identify possible options for resolution.

One of the primary goals of mediation is enhancing the future relationship of the parties involved in the dispute, so the process is less adversarial and formal than either litigation or arbitration. For example, the rules of evidence and formal court procedures do not apply to mediation.

What is Alternative Dispute Resolution?

"Alternative Dispute Resolution" (ADR) is the term used to describe all the other options available for resolving a dispute that once had to be settled in court. ADR processes such as arbitration, mediation and settlement conferences are less formal than court and provide opportunities for litigants to reach an agreement using a problem-solving approach rather than the more adversarial approach of litigation.

What are the benefits of mediation?

Survey results of participants in mediation consistently demonstrate a high satisfaction rate with both the results of the mediation and with the process itself. Because the resolution is determined by the parties and is not imposed on them, settlements achieved in mediation are upheld easily by the parties, and the agreements reached help to foster future positive relationships.

For parties to the dispute, mediation offers a better alternative to litigation because mediation:

• is confidential;
• is highly cost effective;
• take less time to resolve;
• fosters future positive relationships;
• is provides more control over the outcome.

For attorneys, benefits in addition to those mentioned above include:

• shorter time for disposition;
• quicker results for clients;
• ability to represent or advise more clients;
• fewer fee disputes;
• greater client satisfaction.

Does mediation really save time and money?

Download the entire report (over 400 pages) at www.courtinfo.ca.gov/reference/documents/empprept.pdf

What if legal work is necessary?

The mediator does not act as a lawyer for anyone. If legal work is required as a result of the resolution that is reached, the mediator will refer family members to outside legal counsel. Often family members are already represented by counsel who can prepare the necessary documentation.

What if mediation does not resolve the problem?

Sometimes mediation does not result in an agreement or resolution. In these cases, the parties have the right to return to court for a litigated decision. If the case returns to court, the mediator cannot be called to testify or produce notes or records of the mediation, as the rules of evidence are not the same for mediation as they are for litigation.

How does Business Mediation Save Money?

Often the parties to a business conflict are concerned about the cost of either prosecuting or defending a claim. Mediation is being recognized as a much more economic means to resolving a conflict that litigation or arbitration. Because the parties control what happens in the mediation and the outcome they are much more likely to obtain results that are satisfactory. In a pre-litigation mediation often mediation sessions are scheduled to make the process more productive. A typical pre-litigation case will involve an initial mediation session where the participants will evaluate the scope of the controversy. At some initial sessions the parties will not be represented by legal counsel. At these sessions they can evaluate how legal counsel can make the subsequent sessions more productive. In the remaining session the parties will work toward a creative solution, often one that could not be achieve by a trial judge or jury due to the restrictions placed upon them by the rules of evidence and procedure. Most importantly the mediation is completely confidential and instead of spending years in litigation, the parties obtain a resolution to the conflict quickly.

What is Family/Elder Mediation?

Family mediation is a voluntary, consensual process in which a neutral person helps participants discuss and resolve family relationship issues. This should not be confused with family law mediations which involve divorce and child custody matters. The type of family mediation referred to her, and which is handled by Edward Phelps, involves matters that face families as one or more of the members of the family age or face a disability.

What is Family Mediation?

Family mediation is a voluntary, confidential, consensual process in which a neutral person helps participants discuss and resolve family relationship issues

How is mediation of elder/disability issues different from other family mediation?

When family/intergenerational conflicts arise between children and parents, the mediator helps establish an understanding of issues and works with the family to create the means to their resolution.

In business disputes between family members, the mediator helps the family member/partners reach understandings of how the business will be run, or establish terms for the dissolution or sale of the business. Ed Phelps has over 30 years of legal experience including business and real estate transactional and litigation expertise that may help a family in resolving conflicts.

Often, a professional care manager will be involved in the family mediation process to assist the family in evaluating what must be done to manage the case responsibilities.