FAQ - Mediations

What is alternative dispute resolution (ADR)?

Alternative dispute resolution refers to either mediation or arbitration as opposed to litigation.

 

How long have you been providing mediation services in California?

Since 1998. Please see my biography for additional information.

 

What should I look for in a mediator?

While formal mediation training and knowledge of the law is important, there is no substitute for experience. Also, most importantly, your mediator must be patient and an excellent listener.

 

Can we get a free consultation before we commit to formal mediation?

Absolutely.

 

Can a mediator provide legal advice?

No. The role of the mediator is not to provide legal advice. Mediators must remain neutral and cannot  provide legal or other advice to either party. The mediator can point to a written law but may not interpret the law for either party. If a party needs legal advice, they must look to their own attorney.

 

Do you act as an arbitrator in cases?

No. Arbitrations are very different from mediations, I prefer my role as a mediator.

 

What are the Benefits of mediation?

The most common advantages are:

  • The mediator, as a neutral third party, can view the dispute objectively and can assist the parties in exploring alternatives that they might not have considered on their own.
  • Parties almost always save money by reducing the hours spent by legal counsel.
  • Parties increase the possibility of continuing a relationship (if necessary or desired) with each other.
  • Documents and testimony presented do not have to become part of the public record. In fact, discussions that take place are protected by the confidentiality imposed on the mediator and on the parties by Evidence Code Sections 1152 and 1152.5
  • The emotional stress that usually accompanies the more combative, drawn out process of litigation is eliminated.
  • The possibility of an adverse court judgment is avoided.

 

What is the conciliation process?

Conciliation is another term for mediation.

 

Do mediations sometimes result in partial settlements?

Yes. While it is our goal to fully resolve every dispute, sometimes a mediation will resolve some but not every point of contention. Even if a mediation resolves only portions of a dispute, it can save the parties thousands of dollars in litigation costs and can make a future resolution easier to attain.

 

How much is the cost of mediating a dispute?

My fee is $200 per hour which is divided evenly by the parties. I request a four-hour minimum payable in advance. I accept credit cards or checks.

 

Does mediation require the payment of a retainer? I have found several attorneys who will handle my case, but they want a $15,000 retainer.

Mediators are paid in advance of each session. For a four hour mediation, I charge $200/hour or $800 divided 50%/50% between the parties.

 

Are mediation briefs required?

No. They are helpful and save time, but they are not required.

 

What should a non-attorney include in a mediation brief before a mediation?

Mediation briefs are preferred by mediators, but they are not required. See: Mediation Briefs for Non-Attorneys

 

How do we start the mediation process?

The best way to get started is to complete and submit a Request for Mediation form which is on this website. Upon receipt, we will contact you with any questions. We will then send a copy to the other party or parties for their completion and agreement to participate in mediation. Upon receipt of the fully signed forms and payment, we will then contact all parties to establish an acceptable date and time.

 

At what stage of a dispute can mediation be used?

Mediation can be used at any stage of a dispute. It is often effective as the first step toward resolving a dispute after the parties have unsuccessfully concluded their attempt to resolve their differences. Mediation can also be used at any time during litigation or arbitration where the parties want to interrupt the process in order to attempt a settlement. Very often, after spending a great deal of money in litigation or arbitration, the parties are more realistic about being able to mediate a reasonable settlement.

 

Will I be able to express my position at the mediation?

Absolutely. You will have an uninterrupted period of time to make any remarks that you want to make. The other party will have the same opportunity.

 

Are mediations usually successful?

Nationally, over 85% of mediations result in a settlement, thus avoiding litigation. Most importantly, since all parties consent to the final agreement, compliance exceeds 90%, far exceeding the results following litigation.

 

What do I have to lose if I agree to mediate a dispute?

Nothing except your time and 50% of the cost of the mediation. You have much to gain.

 

How long does it take to mediate most cases?

From four to eight hours. I have a four-hour minimum.

 

Can I terminate a mediation if I believe we are making no progress and will not be able to resolve the dispute?

Yes. This happens very rarely, but you have that right.

 

Is mediation binding?

A mediator does not have the power to render a binding decision. The objective of mediation is for the mediator to assist the parties in agreeing to a settlement. Once the agreement is reduced to writing, it becomes enforceable.

 

Is a mediator similar to a judge?

No. A mediator is unlike a judge. Mediators cannot impose their conclusions about how a dispute should be settled on the parties, and don't decide who is right or wrong. Mediators are neutral. Mediators view the dispute objectively and can assist the parties in exploring alternatives they may not have considered.

 

Do you provide mediation services in connection with matters not listed on your website?

Yes. Call for a no-cost consultation so we can discuss your specific needs.

 

Am I required to be represented by an attorney in the mediation?

No. While most people are represented by an attorney, you are not required to be represented. That is your decision.

 

I am having a significant dispute with my former attorney. Can you provide mediation services for this type of dispute?

Absolutely.

 

How should I treat a mediator?

You should trust the mediator as a professional who is dedicated to resolving disputes without the parties being bled dry by the costs of litigation. You should trust the mediator to remain neutral while maintaining confidentiality unless or until you allow the mediator to disclose something . You should not consider the mediator as an opponent.

 

Can you provide us with a sample Settlement Agreement?

Yes: See: Binding Settlement and Release Agreement After Mediation. This is a sample only. It is not intended as legal advice.

 

Are mediations conducted in person or by Zoom Meeting?

In order to keep the price down. I conduct all mediations by Zoom.

 

Are you available on weekends or in the evening?

Yes. I am completely flexible as long as I receive sufficient notice of your requirements.

 

Assuming we settle the dispute, who will draft the settlement agreement?

If the parties are represented by attorneys, they will jointly be responsible for drafting the settlement agreement. If the parties are not represented at the mediation, I will complete a standard settlement form which the parties can then take to their respective attorneys for modification and/or approval.

 

What happens if we don't resolve the dispute at our mediation session?

You can schedule another mediation session, attempt to arbitrate the matter, or you can let a court decide who will prevail. Mediation is almost always the best alternative.

 

Are there any types of disputes where mediation is not suitable?

Very few. In a case where one of the parties has deliberately acted in bad faith and refuses to cooperate in the mediation process, attempts to mediate a dispute may not be productive. This is extremely rare.

 

Who must attend a mediation?

The parties who have the power to agree to a settlement must attend the mediation. Parties may be represented by legal counsel, but they may also bring expert witnesses and percipient witnesses to a mediation to assist is setting a dispute.

 

Am I required to attempt to settle a dispute before filing a lawsuit?

It depends on the agreement between the parties. Some require mediation and some don't. In any event, mediation is far less expensive and risky than litigation, making it an excellent way to resolve most disputes more quickly, and at far less cost.

 

Can I skip the process of mediation and go straight to court?

Possibly, but probably not. Mediation is almost always required by the court before a trial date can be set. Most judges have determined that a mediated agreement is almost always better than an ordered judicial decision.

 

Do you have the expertise to mediate a construction defect case?

Absolutely. I have more than 20 years of extensive experience with construction defect cases.

 

Do you recommend that I include mandatory mediation language in all future contracts?

Absolutely. It can save you thousands of dollars and more. It also avoids the perception of weakness in proposing to resolve a dispute by means of mediation.

 

Can you provide us with a standard contract mediation provision?

Yes. See: Sample Mediation Clause.

 

Are all your clients Christians?

No. We do not ask about your religion but want you to know that I do my best to follow the commands of Jesus in performing as a mediator.

 

I am concerned about my physical safety because the other party tends to be very threatening. How do you handle this situation?

By conducting mediations by Zoom, we eliminate most of the concerns that parties have about their safety or the unpleasantries of having to be in the same room with the other party.

 

What are your normal business hours?

The office is open Monday through Friday from 9:00 am to Noon and from 1:00 pm to 5:30 pm. Mediations can be scheduled during normal business hours or in the evening, or on weekends.

Litigation Glossary

 

Michael Chulak

818-991-9019