David Bulitt, a JGL shareholder and one of the DC area’s top divorce lawyers, sits down for the first in a series of interviews about mediation and its benefits, in light of the new practice area that we have recently launched Alternate Dispute Resolution (ADR).
1. We are hearing a lot these days about mediation in legal disputes. Can you first tell us what exactly it is?
Sure. Mediation in this context is basically an alternate means to resolve a legal dispute between at least two parties. In other words, mediation is a way to settle a matter without a judge or jury doing it.
2. Do the parties have to be in court to mediate?
No. Parties can seek to mediate a dispute when they are in litigation or before one person or entity commences litigation.
3. What types of cases can be mediated?
Generally speaking, in any type of legal dispute, I think that the parties and their lawyers should at least consider mediation as an option to litigation or trial.
4. Why would someone choose to mediate a case rather than litigate?
Mediation, if the parties are prepared, can result in a less stressful, less expensive resolution to their dispute.
5. Do you have to choose one or the other? In other words, can someone decide to mediate even if there is a lawsuit pending?
You absolutely do not have to choose one route or the other. There may be strategic reasons to mediate before a lawsuit is filed or at some point during the litigation process that we will talk about next time. Also, many cases have a mandatory mediation process during the course of litigation.
6. Do mediators give advice to the people who come to see them?
Other than telling someone to talk to his or her own lawyer, a mediator should not be advising anyone. A mediator is an independent, neutral party whose sole job is to assist the parties in finding a resolution to their dispute.
7. Are people required to have their lawyers with them at mediation?
In the event that a case is already in litigation, then generally speaking the lawyers must attend with their clients. If a lawsuit has not yet been filed, people are certainly free to retain a mediator and work directly with that individual to try to resolve their dispute.
8. Is it a good idea to go to mediation without a lawyer?
That is a more complicated question than it sounds. Again, if your case is in litigation, your lawyer is going to be there. If not, again, sometimes strategy comes into play, particularly in family law cases. Either way, I always tell people, in divorce cases anyway, that they should have a lawyer to talk to both before and after each session, to plan, strategize, make sure you know what to expect. That way, the client is getting advice but the lawyer remains “on the sideline” so to speak.
9. Who pays for the mediator?
In most cases the parties agree to divide the mediator’s fees equally. In some instances, there may be a different arrangement although I personally believe that all parties should be paying some share of the mediator’s fee, that way everyone has some motivation, “skin in the game”, if you like, to try to make the mediation successful .
Joseph, Greenwald & Laake, PA is one of the largest and well established firms in the Maryland suburbs. They establishing a new practice area in Alternate Dispute Resolution (ADR), in which its attorneys are prepared to assist litigants across the Washington, DC, metro area resolve their disputes without going to court. The firm will soon be launching its own mediation division, JGL-ADR, which will cater to many types of legal disputes, including personal injury, medical malpractice, family law and divorce, commercial disputes and probate matters.
