What is mediation?
Mediation is a technique used to settle disputes, usually in civil cases, involving a third-party mediator. The third party is neutral and works with both sides to come to an agreement or a compromise. The mediator will give both sides opportunities to discuss and share feelings, while also giving their advice and helping to brainstorm solutions in order to come to an agreement.
How is mediation different from going to court?
Mediation differs from going to court as in mediation, both sides have control over the outcome. In court, a judge or jury will make a final decision about the case. However, in mediation, both sides are able to choose the terms of the agreement. This ensures satisfaction on both sides.
Do the results of mediation have any legal standing?
Yes, the results of meditation are legally binding. Once both sides have come to an agreement, they sign a document stating the terms of the agreement. This document is legally binding and enforceable in court.
How much time should I expect mediation to take?
There is no set timeframe for mediation. Time spent in mediation depends greatly on the nature of the dispute. Mediation could take anywhere from a few hours to several days or weeks, however, it is usually faster than a trial. Generally, one should devote a full day to the mediation process. One session could last anywhere from 3-8 hours. This mostly depends on the complexity of the case and the parties’ willingness to agree.
Who is responsible for the costs of mediation?
Typically, the cost of mediation is split by both parties. However, if agreed to in writing, costs may be split in any way the parties please.
Is what we discuss in mediation kept confidential?
Yes, what is said in mediations is almost always kept confidential. In Georgia, any oral communications or notes by the mediator from the mediation session must remain confidential. This also means that—even with permission from the parties—the mediator cannot be subpoenaed or required to testify about a mediation. There are very few exceptions to the rule of confidentiality. The exceptions, stated by the Georgia Office of Dispute Resolution, are listed below:
- Threats of imminent violence to self or others
- A written and executed agreement or memorandum of agreement
- Mediator believes that a child is abused
- Mediator believes that the safety of any party or 3rd person is in danger
- Issue of Appearance
- A statutory duty to report information
- Documents or communications relevant to a disciplinary complaint against a mediator or ADR program arising out of an ADR process
Who needs to be present during a mediation session?
The only participants that need to be present during a mediation session are the disputing parties and the mediator, however, attorneys and other advisors may also be present. The list of attendees is agreed to before the mediation, so there are no surprises about those in attendance.
What happens if we don’t reach an agreement in mediation?
If an agreement isn’t reached in mediation, there are a few different options to find resolution. Parties may do another mediation session, pursue arbitration, or begin litigation. Parties may do another mediation session if they choose to do so or if ordered by a judge. This should be done if parties believe they can come to a resolution themselves and would like control over the outcome. Arbitration is a private, out of court resolution technique that is more formal. With arbitration, both parties present their case to an arbitrator, who could be a retired judge or senior lawyer. After hearing the evidence, the arbitrator makes a decision about the case. During arbitration, either party may request a trial/litigation within a certain time period. Litigation happens in court and is a public process, as hearings and judgement orders are usually public. Litigation usually involves a trial, unless the dispute gets solved along the way. In litigation, a jury will make the final decision about the case.
Can a mediator provide me with legal advice?
No, a mediator cannot give legal advice or create binding agreements for either side. The role of the mediator is to act as a guiding force to bring the sides to an agreement. Because mediators are just there to facilitate the conversation, they should not be providing legal advice or advocating for either side.
How should I prepare for a mediation session?
To prepare for mediation, you should think about what’s most important to you in the dispute and how each issue in the dispute is of broader relevance to you. You should have goals for the session and prepare any kind of relevant documentation to keep on hand, as being prepared can ensure the efficiency of mediation. You should also be ready to actively listen, as mediation is a conversation where both sides are able to openly discuss their wants and needs.
What kinds of disputes can be resolved through mediation?
Mediation is usually used in civil disputes; however, it can also be used in some non-violent criminal cases. With civil disputes, mediation is commonly used in cases with family or neighbor disputes, business disputes, contract disputes, employment disputes, or claims with little legal merit.
Do I need to hire a lawyer for mediation?
No, you do not need to hire a lawyer for mediation, however you may choose to have one for guidance. In some cases, it may be a good idea to talk to a lawyer before, after, or during mediation. They can help you with tasks like learning about your legal rights and responsibilities, understanding and negotiating a settlement, or writing and reviewing an agreement before signing.
How does mediation work in a virtual setting?
Virtual mediation is extremely similar to in-person mediation but is conducted online through video conferencing platforms like Zoom. With virtual mediations, virtual breakout rooms (separate sessions with select participants from the original call) are often used to allow for deliberations and discussions by the different sides. Virtual mediations allow for flexibility with scheduling and are especially convenient when parties are in different locations.
Can mediation help maintain business relationships?
Yes, mediation can help maintain business relationships. Because mediation occurs in a more informal setting and is conversational, it can allow for more civil conversations to be had. Because the mediator allows opportunities for both sides to share their opinions, it promotes a more collaborative environment rather than an aggressive one, which can maintain or even strengthen business relationships.
Is mediation a less stressful process compared to litigation?
Yes, mediation is generally a less stressful process than litigation. Mediation is more cooperative, and it has both sides come to an understanding, meaning it can reduce emotional stress. Litigation involves a lot more time and preparation. Because both sides have to go to trial, litigation involves preparing evidence for discovery, building a case, and presenting evidence to the jury. Also, because litigation eliminates both sides’ control from the outcome, the jury’s final decision may add to one’s stress.
What happens after we’ve completed mediation?
There are 2 possible outcomes of a mediation session: both sides reach an agreement or neither side reaches an agreement. If both sides reach an agreement, they will sign a document stating the terms of the agreement which will be filed with the court. At this point, one may no longer back out of the agreement or change any terms as it is legally binding. If the sides do not come to an agreement, they have the option to go back to mediation, or try arbitration or litigation, both of which were explained previously.
What is the specific role of the mediator during a dispute?
The role of the mediator during a dispute is to be a neutral 3rd party and act as a guide for the conversation. They will allow both sides the chance to speak and will help bring them to a resolution. The mediator helps keep the environment civil and promotes collaboration between the sides.
What kind of training or certification does a mediator have?
In Georgia, mediator requirements change depending on the type of mediation. However, training courses range from 14 hours to 42 hours, and often require additional experience such as observing mediation sessions or working as a judge/attorney for a certain number of years.
Can my attorney attend the mediation session with me?
Yes, your attorney can attend the mediation session with you. They can provide valuable information and guidance to you during mediation. If choosing to hire one, you should speak with your attorney before, during, and after mediation to ensure a proper understanding of the situation.
What happens if the other party doesn’t abide by the agreement reached during mediation?
The agreement produced by mediation should be signed by both parties and legally enforced. If one party does not abide by the agreement, legal action should be taken. This includes filing a lawsuit. Failure to comply with a mediation agreement should be treated the same as a breach of contract with any other document as it is legally binding.
Researched and Written by: Maya Craven
Updated: 2025-01-24