1. How Does Mediation Differ From Litigation?
Mediation and litigation are two different — though often related — paths to resolving a legal dispute. When we talk about “litigation” we’re usually talking about judges and courtrooms, motions, arguments, and trials. Litigation has formal rules judges enforce and expect lawyers and parties to follow. As it turns out, one of those rules in Minnesota is that parties in most lawsuits have to try some form of Alternative Dispute Resolution — and the most common form parties choose is mediation.
Mediation doesn’t happen in a courtroom. The judge isn’t there and isn’t allowed to know what happened (beyond being told if the parties settled or not). In mediation, there aren’t formal rules governing what kind of information or documents can be shared. In court, a judge (or jury) decides who’s right and who’s wrong, but in mediation, there doesn’t have to be a winner or loser. The mediator doesn’t make any decisions about who’s right or wrong, instead giving the parties a chance to explain their case and what they want out of the dispute; the mediator will ask questions — sometimes tough questions — but the point is to help the parties better understand what’s going on, what the underlying issues and interests might be, and what some possible solutions could be available to them.
That’s another way mediation differs from litigation. In litigation, the remedies available to judges and juries are limited by statutes or common law. They aren’t allowed to get clever or creative. In mediation, though, the possibilities are only limited by the parties’ creativity; they’re free to craft just about any agreement they want (within reason).
2. What Does the Mediation Process Look Like in Minnesota?
The parties, their lawyers, and the mediator get to decide what mediation looks like in each case. Most of the time, though, there are some predictable steps:
- Before the mediation, lawyers will often send the mediator a letter laying out the background of the dispute from their client’s perspective, explaining the strengths and weaknesses of the case and describing what the client is looking for out of a settlement. The mediator might follow up with a call to each lawyer to get a bit more context.
- One of the big questions in mediation is whether the parties will be together in one room or in separate rooms. The benefit of at least starting the mediation together is that the parties hear directly from each other (instead of getting everything second-hand through the mediator) and so are in a better position to understand each other and maybe see the dispute in new ways that reveal new solutions. Sometimes, though, the level of conflict is too high for the parties to sit at a table together; in those situations, the mediator shuttles between the rooms, conveying each side’s view of the case and settlement ideas to the other.
- If the parties reach an agreement, the mediator will often put it in writing. The parties and their lawyers can use that writing to prepare their formal settlement. If agreement can’t be found, the parties return to litigation — though in many cases, the discussions that happened in mediation form the basis of a settlement they reach later.
3. How Long Does Mediation Typically Last?
Mediation is a voluntary process, so it lasts as long as the parties are willing to keep giving it a chance. Though some last a whole day, most mediation sessions are scheduled to last a few hours. Mediators and parties often find that going more than a few hours at a time isn’t productive because people get tired and distracted; so if they are making progress in that first session they can schedule a follow-up to keep the process moving along.
If you are interested in learning more about the mediation process in Minneapolis or St. Paul, reach out to Rubric Legal LLC today at (612) 465-0074 to get started with a trusted business and family law mediator.