(the following information has been reproduced from the Los Angeles County Superior Court website/ADR section, and edited as applicable.)

WHAT IS MEDIATION?

In mediation, a neutral third party called a "mediator" helps participants in the dispute create their own resolution. The mediator makes no decision or findings about the facts of the case and makes no award. Rather, the mediator helps facilitate a discussion in which the parties reach a mutually agreed upon settlement. Therefore, mediation allows for more creative resolutions to disputes than other alternative dispute resolution (ADR) processes.

One of the primary goals of mediation is enhancing the future relationship of the parties involved in the dispute, so the process is less adversarial and formal than either litigation or arbitration. For example, the rules of evidence and formal court procedures do not apply to mediation.

Sometimes mediation does not result in an agreement or resolution. In these cases, the parties have the right to return to court for a litigated decision. If the case returns to court, the mediator cannot be called to testify or produce notes or records of the mediation, as the rules of evidence are not the same for mediation as they are for litigation.

Mediators are not necessarily attorneys. However, most mediators, including attorneys, have received training or have the experience required by California law to be mediators for the Courts.

Going to court, commonly called "litigation," may decide the dispute, but the process can be time consuming, expensive and emotionally draining. Fees may escalate well beyond the original estimate, and the time it takes to reach a decision in our busy courts can be months or even years, sometimes putting all other plans on hold. Many times, relationships suffer from the pressure. In considering all these circumstances, exploring other options, such as mediation, can be a worthwhile pursuit.

• clarify issues, interests and needs;
• explore the merits of each party's positions; and
  
• identify possible options for resolution.

For parties to the dispute, these options:

• are highly cost effective;
• take less time to resolve;
• foster future positive relationships;
• are rated as highly satisfactory; and
  
• provide more control over the outcome.

• shorter time for disposition;
• quicker results for clients;
• ability to represent or advise more clients;
• fewer fee disputes; and
  
• greater client satisfaction.

All parties and decision makers should be present. The parties and decision makers must be prepared to remain present to participate in the mediation until agreement is reached, or the mediation is terminated. If an insurance carrier is involved, a claims representative should be present with appropriate authority and with telephonic access to any other decision maker who can grant additional authority.

Counsel and clients should be prepared to discuss all relevant issues. Before the meeting, clients and counsel should discuss the mediation process and understand it is confidential and non-binding. As part of preparation, counsel are encouraged to discuss with their clients a complete and reasonable litigation budget, without downplaying the costs of proceeding to trial.

Counsel and clients should be prepared both to state their own position and to listen carefully to that of the other side. Persuasive and forceful communication is encouraged, but civility and mutual respect is vital. Hostile or argumentative tactics are likely to cause positions to become entrenched and thus discourage progress.

Parties are encouraged to submit a mediation brief to Bristol Mediation Services of up to 5 pages in length, double space, setting forth the parties and their representatives, a concise description of the facts, any unusual rules of law, the party's position on disputed matters and alternatives the party is willing to consider. The brief may or may not be exchanged with the other side. Exchange of briefs is helpful where the goal is to present a persuasive case to the other side. No exchange may be preferred where the parties wish to disclose information to the mediator only, such as the range of settlement that is desired. In either event, parties should be prepared to discuss frankly all aspects of the case during private discussions with the mediator.

The mediator's opening statement will usually discuss the mediation process and stages, the mediator's role and the confidentiality requirements. All persons present will be required to sign a confidentiality agreement specifically agreeing to hold confidential all discussions in mediation. Each party will present its uninterrupted opening statement setting forth its position as to the facts and the law. After the opening statement, the mediator and parties may ask each other questions or respond to the opening statements. Most mediators will allow this process to continue as long as it appears to be useful.   Thereafter, the mediator may call for a private discussion with each side, sometimes called a caucus. During this time, statements previously made in the joint sessions are explored more fully.

In private discussion, clients and counsel should assist the mediator in understanding the issues and interests at stake. The parties may wish to disclose confidential information to the mediator during these discussions. The mediator will help the parties and counsel to see the strengths, weaknesses, positions, arguments, risks and possibilities of their case.

Either in private discussion or joint session, the mediator may assist the parties in generating and exchanging proposals for settling the case. If the parties reach a settlement agreement, all essential terms should be reduced to writing which will be an enforceable contract if the parties so agree and the appropriate language is included.