Mediation–An Affordable, Efficient and Flexible Option for Dispute Resolution
By Gregory J. Rubens
What is Mediation?
Mediation is an informal voluntary process where a neutral third party (the “mediator”) assists in resolving disputes outside of court, typically in an office setting. The mediator does not make a decision on the merits of a case, but uses his or her skills and experience to guide the parties to a resolution. Under California law, mediation is confidential. This confidentiality helps the mediator and parties to operate in a frank and open environment, knowing that what is said in mediation stays there and cannot be directly used in any further court proceeding. The mediator cannot be called as a witness. The mediation process is driven by the parties. The parties have the option to meet in one room together with the mediator presiding over the meeting, or more often with the mediator shuttling between the parties, who are located in separate rooms communicating proposals between the two rooms.
Cost of Mediation
The cost of mediation is generally shared between the parties. In Estate, Conservatorship and Trust disputes the parties can agree that the Trustee or conservator will pay the fee.
Mediation often occurs after someone files a complaint or petition in court. Courts will refer such matters to mediation as a way to encourage settlement and avoid the prospect of trial delays and an overburdened docket.
Resorting to the Court to resolve disputes can be time consuming and very expensive. Moreover, the remedies available in a court proceeding or trial many times do not resolve all of the issues between the people involved, and further litigation and disputes over such unresolved issues can occur.
In Trust, Conservatorship and Estate disputes, the assets are finite, and the funds spent on litigation can quickly consume a significant proportion or the estate. If there are dependent beneficiaries, the need for the funds for care and support is a strong consideration in early resolution of disputes.
Disputes are often emotional and each party has a different point of view as to what should or should not occur. A good mediator can navigate through these difficult emotions and assist the parties in developing their own solution. Many cases are not entirely about money, and require creative and sometimes detailed solutions made possible in mediation.
The emotional cost of a dispute is sometimes overlooked. The lost hours at work, time thinking about the case and even lost sleep are not easy to quantify and are ordinarily not compensable. Sitting in court for seven or more days waiting for a courtroom, or in trial is not where most people want to spend their time.
Most cases that reach mediation settle because it is usually in all parties interest to mitigate the cost and risk of an adverse result against an adverse court decision. After a successful mediation a formal settlement agreement is usually signed that memorializes the resolution of the disputes, after which any case or petition is dismissed or withdrawn.
- Gregory J. Rubens has been practicing law in San Carlos for over 25 years with a diverse practice in Real Estate, Neighbor Law, Business, Probate, Trust and Conservatorships. He has mediating cases for over ten years in these areas. Greg also practices Municipal law and is the City Attorney for the City of San Carlos and represented the City of San Bruno as its interim City Attorney during the PG&E pipeline explosion and its aftermath. He has been appointed to the San Mateo County ADR panel of mediators in Trust, Estate and Conservatorship disputes.