Avoiding Trial:
Mediation and Other Forms of Alternative Dispute Resolution
We all have conflicts in our lives. Filing a law suit may be the appropriate way to handle some disputes, but trials can be expensive and stressful. There are a number of different ways you can resolve your dispute without going to trial. Alternative dispute resolution, or “ADR” refers to a variety of processes for resolving disputes without going to trial. ADR includes:
- Mediation
- Settlement conferences
- Community conferencing
You can take advantage of some of these services even before you file a court case. Once you have filed a court case, the court may suggest or require that you participate in one or more of these types of ADR programs. There are private mediators in Maryland that you can hire. There is also a network of Community Mediation Centers that train local community members to provide free or low-cost mediation services. The Maryland courts also operate their own mediation and ADR programs. The court may refer you to mediation or another ADR program once you have filed a court action.
What is Mediation?
Mediation is a process in which a trained impartial person, called a mediator, helps you and the other person communicate, understand each other, and reach agreement if possible. Mediation is voluntary, confidential, and lets you and the other person decide what works best for both of you.
Mediation is Voluntary
Mediation is a voluntary process. In all mediations, if the participants cannot come up with a solution that meets their needs, they cannot be forced to agree to anything. Agreements reached in mediation are only final when all of the participants are satisfied and willing to sign their names to the agreement. While a court may order parties to attend mediation, it cannot order them to reach an agreement. If the parties in court-ordered mediation do not reach an agreement, they can still proceed with their case in court. Mediators may not be called to testify about any mediation communications, and mediators are expected to keep information confidential.
Mediation is Confidential
Mediation is a confidential process, which means that anything discussed in mediation cannot be used in court. There are a few exceptions when it comes to child abuse, imminent threats of harm to a person, or allegations of duress or fraud. But any discussions, and if all parties choose, even some agreements reached can be kept confidential.
Mediation Lets You Decide
Mediation revolves around the principle of self-determination. That means that the participants with the dispute decide what solutions will work for them. The mediator does not act as a judge. The mediator remains impartial throughout the process and will not give legal advice or make decisions about the dispute.
What is the Cost of Mediation?
The cost of mediation varies depending on the program. In some court, government, and community programs, the service will be free or based on a sliding fee scale. In other courts and in private mediation, the cost likely will be on an hourly basis and is typically divided by the participants.
When is Mediation Appropriate?
Certain disputes need to be heard by a court. If you are trying to create or change a law, to have a public airing of a complaint, address serious criminal matters, to set precedent or to challenge a precedent established by a prior lawsuit, mediation is not appropriate.
Many people in the legal and mediation fields believe cases involving domestic violence issues are not appropriate for mediation. The mediation process presumes that, with the help of the mediator, the participants can negotiate without fear of retaliation, which might not be possible in relationships that have involved a history of domestic violence. As such, in the Maryland Rules of Procedure, Rule 9-205(b)(2) states “If a party or a child represents to the court in good faith that there is a genuine issue of abuse, as defined in Code, Family Law Article, § 4-501, of the party or child, and that, as a result, mediation would be inappropriate, the court may not order mediation”.
What is a Settlement Conference?
At a settlement conference the people in a dispute in court and/or their attorneys appear before an impartial person in an attempt to resolve the dispute or issues in the dispute by agreement or by means other than trial. A settlement conference may include neutral case evaluation and neutral fact-finding, and the impartial person may recommend the terms of an agreement. The settlement conference facilitator is usually a judge or experienced lawyer who can give informed opinions about how the court might decide the case, discuss how similar cases have been settled, provide advice, and suggest agreements.
What is Community Conferencing?
In Community Conferencing, all the people affected by a behavior or a conflict that has caused them harm are convened for a meeting to have a conversation about that situation. The goal of the conference is to create an agreement that will repair the harm. During the conference, all participants have an opportunity to discuss what happened, how they were personally affected, and how the harm can best be repaired. This process may be used in conflicts involving large numbers of people and is often used as an alternative to juvenile court.