Q. Am I required to have a lawyer present for mediation?
A. You are not required to have a lawyer present during mediation.
Q. My case is set for trial in 2 months. When is the best time to actually mediate a
A. The best time can be any time. Whether the dispute just started, a lawsuit was just filed, has been going on for years, or, you are on the eve of a trial... it can always be a good time for mediation. Remember, the alternative is that a judge or jury will be deciding for you. Keep in mind however, that as a mediator, I do not provide legal advise.
Q. Why would I want to mediate? The other party is so obviously wrong and I will win
in court or arbitration.
A. There are many reasons to mediate your case. The process is confidential , informal, and private. If you go to court, it is none of the above. Furthermore, the mediation will give all the parties an opportunity to communicate important information and agree to non-monetary terms a court will not address (e.g. non-disparagement language, behavioral guidelines, tax planning, enforcement mechanisms, etc.).
As to the other party being "...so obviously wrong and I will win in court", let me tell you a little war story.
In the early 1980's as a young trial lawyer, I had a client who was being sued by a Las Vegas Casino in California state court on a promissory note associated with a casino marker that was not paid. Back then, there was no gambling allowed in California, and there were a host of legal case precedents all standing for the proposition , that enforcement/suing on a gambling debt in California was illegal as against public policy. This was great, as I thought my client had a "Slam Dunk" winner.
Long story short ,
The judge bought the argument of the casino. My client was not being sued on a gambling debt, but on a debt where he could have done anything he wanted to do with the money. Suffice to say, he lost the slam dunk case.
Moral of the story:
There is risk in all cases and there is no such thing as a "Slam Dunk" winner. Mediation can sometimes illuminate us to risks we never consider.
Q. What is the role Steven L. Miller will play in the Mediation?
A. I serve to facilitate the parties in bringing the dispute to a fair resolution. I DO NOT provide legal advise. My sole responsibility is to seek and gain perspective about the various positions, then work with the parties... generally in a private caucus; to educate each side to the potential risks that might be encountered, while also seeking to meet the interests of all stakeholders through a negotiated compromise/settlement.
I DO NOT decide anything. Any deal/resolution will require full agreement by all parties.
Q. Is everything said truly 100% confidential?
A. Almost but not everything. I am bound by ethical rules that certain threats which may be made during the course of mediation associated with a criminal conduct, child abuse, etc. would require disclosure.
Q. Does one win or lose a mediation?
A. Remember, I DO NOT 'decide" what the results will be. Only the parties to the mediation decide what the end result and settlement will be. So, there are no losers in a mediation. If there is a negotiated settlement, I consider that a win for both sides. If there is NO resolution, the matter continues to proceed in the direction it was headed... which is normally to trial.
Q. Does the court have to accept the terms of the mediation?
A. The courts normally don't interfere at all, however, sometimes, if a case involves class or minors rights, class action, or some probate matters, those limited circumstances may require court approval. In most cases, courts DO NOT have to approve a settlement reached during mediation.
Q. I hate the other party I am having a dispute with. Do I have to see him/her in
person at the mediation?
A. I generally recommend and encourage that at least the initial meeting at the mediation include a "joint session". The joint session along with the entire process is conducted in a professional, unbiased, fairly informal yet comfortable environment. The joint session can many times serve to inform the parties of things they may not have been aware of, and can assist in facilitating the ultimate goal of coming to a settlement and resolving the case/dispute.
Q. Mediation seems to be something I would be interested in. However, would it be a
sign of weakness to reach out to my opponent by inquiring if they are interested in
mediating our dispute?
A. No, it would not be a sign of weakness. Mediation makes sense for all parties at every stage of the case. Remember, it requires the agreement of ALL parties to settle. It saves both time and money on attorney fees going forward and eliminates future unknown risk.
Q. Who pays for the cost of mediation?
A. Please see the fees and cancellation policy. As a general rule fees are split equally between the parties.
Q. In our case there are 4 different parties; each with different interests. Can this type
of dispute still be mediated?
A. Yes, Absolutely!
Q. Are there other types of disputes that are not lawsuits that lend themselves to
A. Absolutely. Whether it is an on-going work/employment relationship, business dissolution, legislation negotiation, multi-stakeholder community dispute, all are excellent candidates for mediation.
Q. Are there other requirements expected of me to participate in a mediation?
A. Other than paying your fair share to the mediator, the only requirement you have is to participate in "good faith", agree to the rules provided, and to come with an "open mind" in order to resolve the dispute at hand.
Q. Am I required to stay at the mediation if I Do Not like they way it is proceeding?
A. The short answer is NO. One can leave the mediation process whenever the choose, however, I strongly urge all parties to work with me in good faith and give the mediation process your best shot.
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