Mary-Margaret Bierbaum, Attorney at Law

MEDIATION Frequently Asked Questions

  1. What is mediation?

    Mediation is a process in which parties in conflict voluntarily participate in a joint effort to reach a settlement. A neutral third party, the mediator, facilitates the communication between the parties, addresses the barriers to resolution and helps fashion a settlement to which all the parties can agree.

  2. What is the role of the mediator?

    The mediator is a neutral intermediary whose role is to help the participants reach a settlement. The mediator will not impose a settlement, but will assist the parties in exploring settlement options. If a legal action is pending, the mediator generally does not communicate with the court except to file a Statement of Agreement/Non-Agreement at the conclusion of mediation.

  3. When is mediation appropriate?

    Mediation is particularly useful when parties have a relationship they want to preserve. So when family members, neighbors, or business partners have a dispute, mediation may be the Alternative Dispute Resolution (ADR) process to use. Mediation is especially helpful when emotions are getting in the way of resolution. An effective mediator listens to the parties and helps them communicate with each other in a constructive manner.

    When cases are resolved through mediation, the parties save money that they otherwise would have spent on attorney's fees, court costs, and experts' fees, which can total many thousands of dollars!

  4. How does mediation differ from arbitration?

    In mediation, the parties have more control of their destiny. Mediators are "process" experts, not decision-makers. A mediator will help parties to reach agreement, but will not impose or dictate a settlement.

    Arbitration involves a neutral 3rd party sitting as a Judge, and making a decision which can be binding or not, depending.

  5. Do mediators receive a percentage of the settlement?

    No. Mediators work on an hourly fee basis. This fee can be paid by one or all parties, or any other sharing arrangement.

  6. If we reach a settlement, is it legally binding?

    The mediation will usually close with a signed agreement, and it can be legally binding, if all parties agree. The parties can commit to ending the lawsuit with a formal settlement and release agreement.

  7. How is mediation different from collaborative law?

    Mediation is both complementary to and different from collaborative law. In collaborative law, attorneys for opposing parties agree to cooperate to find an agreeable settlement. This is accomplished by bringing both parties and their counsel together in joint meetings, which allows a greater likelihood of compromise than in adversarial litigation. Even in collaborative law, however, each attorney has a legally mandated responsibility to make it their first priority to protect their own client's interests. Mediation, on the other hand, is a process that creates a neutral space for the exploration and resolution of issues to all parties' satisfaction. Because mediators are not representing either party, they are free to have private meetings with each side when it is helpful, and to engage in shuttle diplomacy if that will further the progress of the negotiations. Mediators have a range of options not available to the lawyer with a client.

  8. How much does it cost?

    Ms. Bierbaum charges $350 per hour and the charges are typically split between the parties.

  9. Who must attend the mediation?

    All parties, their counsel (if the parties are represented,) and persons with full authority to settle the case must personally attend the mediation, unless excused by the Court or mediator for good cause.

  10. Is mediation confidential?

    Yes, except as otherwise provided by California law, all communications, negotiations, or settlement discussions in the course of a mediation are confidential and are not admissible in Court or subject to discovery. This encourages the parties to freely communicate when mediating a resolution to their dispute. The participants are required to sign a confidentiality agreement.

  11. How do I prepare for the mediation?

    Before the mediation session, you (and your attorney, if you're represented) should discuss the mediation process. You (and your attorney) should be prepared to discuss all relevant issues/concerns in your case and be prepared to state your position and to listen carefully to the other side. Persuasive and forceful presentation are permitted, but civility and mutual respect is vital. Hostile or argumentative tactics are likely to cause parties to entrench their positions and thus discourage progress.

    I request pre-mediation briefs to familiarize myself with the issues. These briefs are usually provided to the other parties in the mediation, but I may receive additional written (or oral) statements that are only shared with the mediator.

  12. What if we can't reach an agreement?

    You are free to return to the conflict if you choose to do so. The mediation process you have gone through remains confidential, and your mediator cannot be called to testify in court, even if you choose to further litigate after the mediation. Often, however, once good intentioned settlement discussions have begun, the momentum continues, even outside the mediation process , and cases eventually resolve.

See also the Mediation home page


Disclaimer

This web page is not intended to provide legal advice. Please be aware that statutes and the courts' interpretation of them change over time.

An attorney-client relationship cannot be established with Mary-Margaret Bierbaum simply by reading this website; that can be done only by contacting Ms. Bierbaum and by mutually agreeing on such a relationship. You may use email to contact Ms. Bierbaum or her assistants, but do not email any confidential material or information before an attorney-client relationship has been established.


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