::mediation
vs. litigation
When Lawyers Are Present
Sometimes parties come to mediation after they are already
involved in litigation and have exchanged all of the information
they need regarding property and children. In this case, the
lawyers usually come with their clients to mediation, although
their presence is not required. A trial date may have already
been set, but, in any event, the parties are trying to avoid
a trial by reaching an agreement.
The mediator usually listens to the lawyers and clients summarize
the case in a joint session and then places each side in a
separate room. The mediator shuttles back and forth, talking
to each side in more detail about their case, and exchanges
offers. When an agreement is reached, everyone meets together
again to write and sign the agreement. The lawyers later type
up the agreement in more formal language. This kind of mediation
session usually takes several hours.
Confidentiality
Everything said in mediation is privileged. If a trial is
held, the mediator will not testify, and neither party can
repeat in court what was said in mediation.
Also, the mediator will not repeat to the other side what
you tell him in your individual caucuses unless you authorize
him to. Thus, you can discuss your case frankly with the mediator
without fear that he will repeat your comments to the other
side.
The Advantages of Mediation
By mediating, you:
1. Save Attorney’s Fees. Mediation is more efficient
and frequently less expensive than litigation.
2. Save Time. Formal discovery (exchanging information) can
take many hours of your time finding documents, answering
questions and meeting with your lawyer. If you have to go
to court, and often many court hearings are required, you
may miss work for days at a time. In mediation, information
can be exchanged informally and much more efficiently.
3. Avoid Hostilities. Mediation is designed to get the legal
details resolved without the character assassination that
accompanies litigation.
4. Save the Children. The children suffer from their parents’
litigation, no matter how hard you try to spare them. They
know their parents are mad at one another, and that anger
confuses and frightens them. Mediation attempts to reduce
the anger and shorten the period of greatest stress to the
family.
5. Maintain Privacy. Your personal business is not discussed
is an open courtroom.
If you have any questions, please call DANIEL V. BURKE
at 760-434-3330.
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