A written court order based on the terms of an agreement can make mediation binding in California. Binding mediation, however, may not be applicable for every California civil dispute. But when used correctly in certain types of cases, it can be a quicker and less costly alternative to taking legal action.
Why mediation?
Parties considering going to court should think about mediation with an open mind. Disputes that can be resolved without resorting to court intervention or arbitration can spare the conflicting parties a lot of stress, as well as time and money in legal proceedings.
Mediation is a settlement method allowing conflicting parties to express their claims or concerns to a mediator. A mediator is a neutral third party who attempts to bring parties and their disputes to early resolution.
Mediation is not the same as arbitration. In arbitration, parties agree to submit their disputes to an impartial third person, such as a judge, to hear their case. The designated arbitrator can make decisions about the case and eventually decide who is right and wrong according to law. Arbitration can be binding on all the parties involved.
A mediator, on the other hand, simply hears the position of both sides and does not decide any issues concerning the case. They work to find a potential resolution that the parties would agree to. A mediator cannot decide issues or make any binding rulings about the case.
Considerations when parties need to use binding mediation to resolve disputes
These and other factors should be considered when parties want to make mediation binding:
Speed
Mediation offers the best chance for a quick resolution when compared to going through the courts.
Financial considerations
Mediation provides one of the cheapest means of settling disputes. If cost is a concern, then disputing parties should consider using the mediation process.
Complete trust in the mediator
Sometimes there is the need to entrust the outcome of the dispute to the mediator if parties failed to reach a settlement. Parties can never agree to binding mediation unless they have complete trust in the mediator’s fairness, wisdom, impartiality, and integrity.
Non-monetary issues at stake
There are non-monetary issues put at risk in a dispute which need to be resolved. For example, there are cases of neighbors disputing over noise or property boundaries. These type of disputes and other non-monetary issues may be suitable to resolution through binding mediation.
Enforcing a mediation agreement
How can one party ensure that the other party will keep their end of the agreement when the mediation is over? Enforcing an agreement depends mostly on the conditions surrounding the mediation.
According to a procedure established by California law, the court must enter a judgment that covers the terms of the agreement if the mediation occurred as part of a lawsuit. The decision must be in writing and signed by all parties involved in the litigation. It may be allowed as evidence.
Once it is made into a court judgment, the mediation agreement can be binding just like any other court decision. The parties can request the court to retain legal authority in case enforcement matters will be necessary in the future.
Sometimes mediation does not occur as part of a lawsuit but used as a way to avoid legal action. In this situation, the written agreement will be enforceable under contract law. Violating a contract will undoubtedly result in a lawsuit.
If you or your organization is considering mediation to resolve a dispute then don’t hesitate to contact one of the skilled mediators at Kanter Ostler Mediation & Dispute Resolution by calling (619) 304-2244 today.
