Background

During the height of the COVID-19 pandemic, some mediators reported a considerable increase in their workload. The shift was caused by courts across the country slowing or shutting down large areas of their caseload, and in some cases postponing all civil jury trials until 2021.

One of the silver linings of this backlog, however, was an increase in the number of people mediating disputes — so that parties could avoid waiting years to go to court and also find relief from the financial burden of the trial system. In some cases, parties are being required to participate in a court’s mediation program. (For instance, MLG serves on the Northern District Court of California’s prestigious mediation panel — a panel tasked with mediating disputes for parties who are required to try Alternative Dispute Resolution before going to jury trial). In other cases, parties seek out a private, neutral mediator who is trained to settle matters outside the court system.

How do court mediations differ from workplace mediations?

Court mediations are used for a wide range of cases — from fee disputes, to divorce and custody issues, to sexual harassment matters — and are now essential infrastructure of the regular court system. The goal of courtroom mediations is to avoid trial. By contrast, workplace mediations are between two employees mired in an intractable conflict. In such cases, the mediator aids the parties to move into enough consensus that they can once again work together productively.

Unlike our practice of workplace mediation – in which the employer hires us to mediate a conflict within the workplace — court mediations often involve MLG being hired by the parties’ counsel. While workplace mediations often happen largely within the context of a joint session, court mediations frequently involve a great deal of caucusing, and a more strategic focus on numbers and potential solutions or compromises. The mediator will meet with both parties and their counsel separately, gathering a deep understanding of each side’s perspective, as well as a sense of what would allow each party to come to an agreement. Additionally, unlike in the case of workplace mediations, agreements reached during a court mediation are generally enforceable in court.

Why are court mediations so important?

Aside from providing a cheaper and faster alternative to the backlogged trial system, court mediations offer a variety of benefits. First of all, the mediation process is often less intimidating than facing a judge in court — not only because mediation’s optics and procedures are less formal, but because mediation begins with listening to the parties where they are. Mediation allows both parties a space to feel heard, and often to understand the perspective of the opposing side in a new way — allowing both parties to more deeply understand the root cause of the problem before considering compromise. Unlike the trial system, which focuses most often on deciding fault and assigning consequences, mediations focus on the divergence and convergence of personal interests, and the types of solutions that both sides can live with.

The mediation process also puts a great deal of power in the hands of the parties themselves. The mediator is not present to impose a decision; rather, she works with the parties to come up with a solution that works for both of them. This offers an amount of choice and agency that people rarely experience in the courtroom itself, and it often inspires more personal investment in both process and outcome. Perhaps this is why people experience higher levels of satisfaction in mediation than they do in the court system, why mediation often results in agreement (70–80% of the time), and why mediation agreements are usually honored by both sides without court interference.

While court mediations do not always end in deep mutual understanding, they do often move parties from a place of refusing to consider the needs of the other, to a place of willingness to compromise. And when there is an existing relationship between the parties (as in divorce mediations), skills learned during the mediation process — including problem-solving, listening, communication, and compromise — can allow the parties to move into a more functional relationship in the future. Even when the parties will not maintain a future relationship, the learning that can occur in mediation often benefits the parties for years to come.

Author: Diana Maier, Founding Partner

Please contact the team at Maier Law Group if you would like to learn more about our mediation practice. We invite you to reach out to us at info@maierlawgroup.com for more information.

This article has been prepared for general informational purposes only and does not constitute advertising, solicitation, or legal advice. If you have questions about a particular matter, please contact the Maier Law Group directly.