LEGAL MATTERS
Author's Note: There are very few simple legal problems. There are no simple legal solutions. The questions and answers printed here are intended to provide the readers with practical understanding of legal issues frequently encountered. The law referred to is primarily South Carolina law. Do not attempt to solve your own legal problems based on this information. If you have a legal problem, consult a lawyer right away.
QUESTION: I am involved in a lawsuit which has been dragging on for almost one year. My lawyer has recommended that I participate in a mediation. Should I do this? What's mediation about? Am I bound by the mediator's ruling? Will mediation bring this case to a close any faster than waiting on a trial?
ANSWER: Your lawyer has given you good advice. I strongly recommend that you participate in the mediation process.
Mediation is an informal process in which individuals involved in a dispute work out a solution with the aid of a neutral third-party, referred to as the mediator.
The mediation of disputes, particularly those in which the parties are involved in a lawsuit, is a fast growing trend not only in SC but throughout the US. This is an important development and is seen by many as one of the few bright spots in our judicial system which provides an important alternative to long, drawn-out, and costly lawsuits. The advantages of mediation over litigation are many. Mediation is a voluntary process in which the participants fashion their own solutions to the problems and disputes which they face. In litigation, a case is presented to a judge or a jury, generally resulting in an all-or-nothing resolution in favor of one of the litigants. Mediation is swift and efficient and can be scheduled promptly at a time mutually convenient to all involved. Litigation and trial are extremely time consuming, fraught with stress and anxiety, and trials are seldom conducted at a time when the participants have adequate notice or at a time which is convenient.
Mediation has other advantages over litigation. It is less expensive. The cost of mediation, usually an hourly fee paid to the mediator, is generally divided equally between the participants. Because it is a voluntary process, any party involved in a mediation may withdraw at any time and no one is bound by the outcome of a mediation unless they wish to be so bound.
The mediator is not a judge and makes no decisions regarding the merits or lack of merits of the parties respective cases. The mediator is not an arbitrator and does not reach a binding conclusion to establish the outcome of the case. The mediator assists the participants in addressing their complaints and in exploring alternatives for a satisfactory resolution. The mediator acts at all times as a completely neutral third party.
One of the most important characteristics of a mediation is that it is confidential. The information exchanged between the parties, the solutions which are explored, the offers and compromises which are discussed and all other aspects of the mediation are completely confidential. In the event a mediation is unsuccessful, the information exchanged and the discussions had may not be later used to the advantage or disadvantage of any participant.
Having been involved in the trial of civil cases for 15 years, this author views mediation as a much needed and important adjunct to the trial and litigation process. If there is a significant flaw in our civil trial system, it is that at no time in the entire process are the litigants encouraged or even afforded an opportunity to sit down in a quiet, civilized manner to discuss their problems, their complaints, and their desired goals and objectives. It has been my experience that mediation, by giving the participants such an opportunity, results in a satisfactory conclusion in a very high percentage of cases.
In conclusion, I recommend that you participate in this mediation. You have everything to gain from participating in a mediation and absolutely nothing to lose.
Dennis E. O'Neill is a lifelong resident of Charleston County. He has been engaged in the general practice of law since 1978 and has served as Municipal Judge in Mt. Pleasant, Sullivans Island and Isle of Palms.
©Dennis O’Neill 1993, 2003
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