What is mediation in civil cases?
Mediation is a process that can help parties to a civil lawsuit reach
an agreement through the use of a neutral person trained in problem
solving instead of going to trial. A civil lawsuit is generally a
case where the parties are suing for money, such as a personal injury.
In some Oregon counties judges will serve as mediators when requested
to do so by the parties. A mediation with a judge is sometimes called
a “settlement conference.” In most Oregon counties there
are private mediators who provide mediation services in civil cases.
Who is a mediator in civil case?
In some counties judges are available to act as mediators. If the case
does not settle, the case will usually be tried before another judge.
If a private mediator is used, the parties decide who will serve as
the mediator. Usually the mediator has no prior relationship with either
party. Most private mediators in civil cases are lawyers with special
mediation training and experience. However, the parties may choose
a mediator who is not lawyer, such as an engineer, a realtor or certified
public accountant, if that person’s expertise would be helpful
in resolving the case.
What kind of civil cases are mediated?
Any type of civil case or issue in a civil case may be mediated so long
as the parties agree it should be mediated. In addition, mediation is available
before a lawsuit is even filed. The courts encourage mediation of disputes
in civil cases for three reasons: the court system doesn’t have the resources
to have a trial in every civil case; often the parties reach a better result
in mediation; and people are often more satisfied with a mediated resolution.
What is the cost of civil mediation?
If a mediation is successful, the cost of resolving the dispute is usually
substantially less than if the case goes to trial. In counties where judges
are available to provide mediation services, the only cost is the fees paid
by each party to the party’s lawyer to assist the party at the mediation.
Private mediators generally charge by the hour. Many cases are resolved
in only a few hours. In addition to the cost of the mediator, each
party must pay the fee of the party’s lawyer, if any, for assistance
provided to the party at the mediation
The mediator may initially request that each side pay a deposit equal
to half of the expected fee, but the parties may later negotiate for
a different payment schedule. In cases in which one or both of the
parties cannot pay the fee, some mediators will volunteer their services
or offer a reduced fee.
What is the procedure in civil mediation?
State courts do not require that parties to a civil case mediate the
case before the trial (except in small claim cases in some counties,
when the amount in dispute is less than $7500). However, many courts
allow the parties to choose to mediate their case rather than go through
the court’s required arbitration procedure.
Cases mediated by a judge usually take place at the judge’s office
in the courthouse. Cases mediated by a private mediator may take place
at the office of the mediator, at the office of one of the attorneys,
or at another place agreed to by the parties.
Each party typically gives information about the case to the mediator
before the mediation session to help the mediator prepare. The mediation
process is flexible. Usually the mediator will have an initial session
with all the parties and their lawyers. Sometimes the mediation will
continue with all of the parties together. Other times, the mediator
or the parties may prefer to have the mediator meet with each side
confidentially, going back and forth between the parties until an agreement
is reached.
The entire mediation process is confidential. The reason for this rule
is to allow the parties to engage in frank discussions without concern
that what they say in mediation will later be used against them in
court if the case does not settle.
What happens at the end of civil mediation?
If the parties reach an agreement, the parties’ lawyers or the
mediator will usually draw up an agreement that the parties sign before
the mediation is over. If the agreement is complicated or there are
minor details that remain unresolved, the mediator may assist the parties
in preparing an agreement for all the parties to sign at the mediation,
with the understanding that the parties’ lawyers will prepare
a more formal agreement after the mediation is over. Usually the lawyers
for the parties prepare the final documents. Unless one of the parties
is a public agency, the parties may agree that the settlement terms
are confidential, so that the only information available to the public
is the fact that the case was settled and dismissed.
If the dispute is not settled in mediation, then the case proceeds
to arbitration or trial before a judge or jury. Anything that was said
in the mediation is confidential, so when the case comes to trial,
the judge and jury do not hear about settlement offers or anything
else that occurred in the mediation.
Legal editor: Thomas Brookes, September 2013.
