Mediation is a way for two parties who are involved in some kind of legal dispute-a divorce, for example-to reach an agreement without having to dispute the matter in court. Settling matters in court can be a lengthy and expensive process, and because the courts are so busy, there can be significant delays that would prevent you from otherwise moving on with your life. Mediation can help you speed things up and save money.
Even with all the potential benefits of mediation, it is not always a substitute for going to court. If there’s any serious concern that the other party wouldn’t keep to the terms of an agreement reached through negotiation, court can sometimes be the better option. This is because an order made by a judge is more powerful than any contract you might be a party to. If somebody defaults on a contract condition, at most that is breach of contract. If somebody fails to comply with a court order, that is more serious and there are a range of penalties that could be applied, including the possibility of imprisonment.
Oceanside mediation attorneys Fischer & Van Thiel are very experienced in negotiating successful mediation outcomes for clients. Their suggestion is that mediation is nearly always worth a try in the first instance, not just because of the potential cost savings but also because mediation will normally be a less stressful process than then more formal court room setting. Should the other party fail to meet the terms of a mediated agreement, your attorney can follow up with enforcement action to secure an actual court order for you, and from then on the risk of incurring the penalties described earlier would usually serve as sufficient motivation for the other party to meet their contractual obligations.
Mediation works very differently to court. The meeting is presided over by a mediator, who is a neutral party, taking no sides in the dispute and not passing any judgment. Their role is purely to facilitate an agreement being made, but they will not require either party to agree to anything. The idea is to work out a solution that both sides are comfortable with. Mediators also don’t advise the parties on how they should act or try in any way to influence the agreement being reached.
So what happens is that the attorneys of the two parties will usually give advice to their clients to help them understand the legal consequences of anything they intend to agree upon, so that the decision made will be an informed one. If an agreement is reached, then the attorneys will draw it up as a formal document for both parties to sign. From then on, it is a legally binding contract, fully enforceable under Californian contract law.
One important step of the mediation process is that you can abandon it at any time before you actually sign any contract agreement. This means that the mediation process has failed, and you can either schedule a new mediation at a later date or pursue the matter through the courts as with any other legal dispute. Plus of course your opponent can also do the same.