Most people assume that if they have a dispute with another party, whether it be a personal injury dispute or a workers’ compensation claim or a contract dispute, that they have to go to court and “sue” the other party to recover damages. That is simply not true. In fact, suing someone, by filing a complaint in court, is generally the last step that parties should take for a number of reasons.
First, filing a lawsuit in court is expensive. Depending on the type of case, fees could include: filing fees, deposition costs, expert testimony, discovery costs and attorneys fees. This could range from tens of thousands of dollars to hundreds of thousands of dollars depending on the complexity of the case. Second, filing a lawsuit is time consuming. It can take years for cases to work their way through the court system.
In many cases, mediation is a less expensive and quicker way to resolve disputes between parties. Mediation is generally a voluntary process but there are certain situations in which a court might mandate mediation.
What is Mediation?
Mediation occurs when both parties select a neutral third party, the mediator, to review the facts and legal issues involved and help the parties come to a mutually agreed upon settlement.
What is the Mediator’s Role?
Mediators are not judges. They may not even be lawyers. They do not decide who is at fault or what damages should be awarded. Rather the mediator’s role is that of a neutral go-between trying to help the parties reach a resolution. The mediator will help both parties to understand the issues and the differences between the parties and will essentially be asking both parties to compromise so that a resolution can occur.
How Does Mediation Work?
How the actual mediation is conducted is up to the mediator. Before the actual mediation takes place, many mediators will ask both parties to submit a statement containing their positions. This allows the mediator to understand what facts and legal issues are in dispute. Some mediators will require the parties to exchange these statements, other mediators will not and will keep them confidential.
Typically, mediators will hold a joint session with both parties and their attorneys at the outset of the mediation. The mediator will explain the process, specifically the mediator’s role as a neutral third party not someone who is going to make a decision and impose it on the parties, and set some ground rules. They will often allow each party to make a statement summarizing their position. This allows both parties to hear what the other side has to say, especially if mediation statements have not been exchanged.
After the joint session, the mediator will usually separate the parties and their attorneys into different rooms and at this point the mediator will talk to each party separately. This allows the parties to explain their position further and make clear what their goals are. Since this is done one-on-one with the mediator, it allows parties to speak more freely then they might if the other party were in the room.
During what is often numerous trips back and forth between the parties, the conversation will of course turn to resolution. The mediator’s ultimate goal is to get both parties to compromise on what they are looking for and meet somewhere that is mutually agreeable to both parties.
Some mediations are successful in one day, some take multiple days. If the parties are close to a resolution but can’t resolve it by the end of a mediation, often mediators are willing to continue to act as a go-between to achieve a settlement.
In the case of a successful mediation, there is often a discussion between the parties’ attorneys about what terms will need to be included in a settlement agreement. The mediator is generally present to offer advice and suggestions if the attorneys disagree on the terms and may even help to get a written settlement agreement in place. The settlement agreement is legally enforceable in court, having a neutral third party involved may help to ensure that there is not disagreement later.
Is Mediation Expensive?
Mediation is not free, but in most cases, it will be significantly cheaper than going to court. Most mediators charge a flat fee, plus an hourly rate for their time. The hourly rate is dependent on a number of factors including the mediator’s background and experience level. For example, a retired judge who is acting as a mediator will charge a significantly higher hourly rate then a non-lawyer who is just starting out as a mediator.
Since the parties choose the mediators, cost can be considered. Often one party will propose the names of a few mediators to the other party and they will agree on one. Depending on the type of case, parties may choose a mediator based on his/her background. In a personal injury case, it might be best to pick a mediator who was a personal injury lawyer or a retired judge who likely heard many personal injury cases throughout their career.
In North Carolina, parties in a personal injury case share the costs of the mediation. In a North Carolina workers’ compensation case, the employer pays for the cost of the mediation up front but the injured employee may have to pay a portion of costs later. Parties can agree that one party pay the entire cost of the mediation as a part of a settlement.
When is Mediation Not Voluntary in North Carolina?
In North Carolina, parties who file their cases in North Carolina Superior Court are required to go to mediation. Parties who bring workers’ compensation claims are also required to attend mediation. In North Carolina, many personal injury cases are filed in Superior Court and therefore must go to mediation. If mediation is unsuccessful, then the case will be allowed to proceed in court if it is a personal injury case, or before the N.C. Industrial Commission if it is a workers’ compensation case.
If mediation is successful, in a North Carolina workers’ compensation case, a “clincher” will be drafted. The “clincher” is basically a settlement agreement. It will have to be sent to the N.C. Industrial Commission for approval.
If a mediation is successful in a personal injury case then a normal settlement agreement will be signed. In North Carolina, personal injury settlement agreements must contain a “release of claims” provision. The mediator will inform the court that the case has been settled and once the injured party gets their money, the case will be dismissed.
Why Do I Need a Charlotte Law Firm?
The Charlotte, NC based lawyers at Rosensteel Fleishman, PLLC are experienced attorneys who can help you understand if mediation would be helpful in your case and represent you through the mediation process. Please contact our office at 704-714-1450. There is no fee for an initial consultation.