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What is mediation and can I Participate in mediation while social distancing?

With the courts current closure and the California Governor Gavin Newsom’s Stay at Home Order, issued on March 19, 2020, due to the COVID-19 pandemic, many parties are left thinking that their case is on hold until further notice.  However, this is not necessarily true.  There are still many things that can be done, one of them is for the parties to attempt settlement.

Despite the courts current closure, several law firms and mediation firms remain open and actively working on cases. Instead of waiting until the courts reopen, parties can take matters into their own hands by attempting to settle their case.  One of the most successful routes in settling is participating in voluntary mediation.  Mediation is when a neutral third-party attempt to settle a dispute between parties.

Prior to attending mediation, generally the parties prepare a mediation brief detailing their position.  This mediation brief is exchanged between the parties and served on the mediator.  The mediator reviews both briefs, then schedules a meeting with all parties and their counsel.  Mediation can be a joint session or individual session, meaning everyone can be in one room or in separate rooms.  If the mediator is successful in resolving some or all the parties’ disputes (you do not always have to settle the entire case, you can settle a portion of it), then a written agreement will follow.

If mediation seems like a route that you are interested in taking, the question becomes how can we mediate when there is a current Stay at Home Order and the need to social distance ourselves? Fortunately, with today’s technology, several mediators are offering virtual mediation. This can be done from the comfort of your own home, so long as you have internet, a computer, or a phone with a webcam. With virtual mediations, there is real-time streaming video, the parties are able to chat online, document share, and electronically sign.  Additionally, virtual mediation programs allow virtual caucus rooms to speak privately with your mediator and/or attorney. Essentially, you can break into different groups throughout the process.

All mediation sessions are private, meaning not open to the public and not made part of the court record, so the online sessions will not be recorded and released to the public or the Court.  The parties can choose the amount of time to mediate their case and it gives them the opportunity to actively participate in the resolution of their dispute, instead of having a Judge decide for them.  The parties can control the outcome, since all parties must agree to any settlement in mediation.  And if the parties do not reach an agreement at mediation, then they can walk away and neither party will be penalized for not reaching an agreement.

The first step in participating in mediation is getting both parties to agree to mediation.  If one of the parties does not agree, then mediation will not happen.  Additionally, if both parties agree to mediation, they must be completely willing to cooperate and compromise, and understand that mediation is confidential.

Mediation is an extremely helpful tool in resolving your case, which can ultimately save you time, stress and money.

By Anna Encinias, Esq., Attorney at Contreras Law Firm

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