When someone files a lawsuit against someone else, it is far more likely that the two parties will reach a settlement outside of court than engage in a prolonged, expensive legal battle. Essentially, after the plaintiff has filed his or her complaint and explained his or her demands, the defendant (the person being sued) has the option to simply agree to his or her terms and pay the damages or fight the charges in court.
Depending on the nature of the lawsuit, a settlement may not be an option. It’s not uncommon for people in heated, emotional situations to prolong a lawsuit simply to drive up the opposition’s legal costs and stress levels. These unfortunate situations are time-consuming, stressful, and more difficult for everyone involved. Fortunately, most people would rather have lawsuits be over and done with than to drag them out, and there are several options for reaching a speedy and mutually agreeable solution. Mediation is a popular choice for achieving this goal.
What is Mediation?
During mediation, the two parties of a lawsuit will meet outside of court with a neutral third party who acts as a facilitator and encourages constructive negotiation. Many attorneys and judges who decide to retire from taking on clients will continue to practice law as a mediator to help other attorneys settle their cases more quickly and painlessly. However, it’s important to recognize that even though mediators are not technically attorneys in this capacity, they are still obliged to maintain confidentiality. It could even be argued that mediators are held to a higher standard of confidentiality because they deal with both sides of a lawsuit equally.
Successfully settling a case with mediation, arbitration, or any other settlement method hinges on both parties being willing to compromise. Mediation may leave on side of a lawsuit feeling dissatisfied, but as long as the mediation proceedings were fully documented and performed in good faith, the participants are obligated to accept the final decision. However, the mediator must ensure that the final agreement is constructed in such a way that it is legally enforceable and binding once the parties sign it.
The Need for Confidentiality
The only times a party involved in mediation can effectively contest the outcome is if there is reason to believe that the mediator in some way showed preferential treatment to the other side. This could include undocumented communications with the other party or any failings in maintaining impartiality. Allegations of attorney malpractice can arise in mediations as well as any other lawsuit.
The best way to prevent any disputes over a mediation result is to approach mediation thoughtfully and for both sides to fully prepare for the proceedings and be willing to compromise. At the beginning of mediation, every participant should sign a written agreement that includes strict confidentiality of all proceedings, nondisclosure, and defines all communications as inadmissible into evidence. Additionally, the attorneys and mediator should make it perfectly clear to all participants what these agreements mean and that they understand the potential repercussions if these agreements are broken.
To prevent any future contests against the result of the mediation, the written agreement needs to clearly state that it is a legally binding and enforceable agreement. Ideally, both parties will reach a mutually agreeable conclusion and sign off that the result is acceptable and they do not intend to contest the result. If all communications have been kept confidential and the mediator has acted in good faith toward all participants, this should be an acceptable outcome for everyone involved.
Mediation works differently than a typical settlement discussion, so if you’re considering this route, it’s crucial to fully discuss the advantages and drawbacks of this approach with your attorney. Mediation can be an effective way to settle a case quickly with a lower time commitment and fewer legal fees for everyone involved, but strict confidentiality is absolutely essential.
