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Mediation

Mediation is a process in which a mediator facilitates communication and negotiation between parties to assist them in reaching a voluntary agreement between themselves regarding their dispute. Mediation gives people a chance to sit down with a mediator in an informal setting to try and work out their conflicts. The mediator is a trained problem-solver who will help the parties come to an agreement. Mediators usually charge a fee for their services, but mediation could save you time and money in the long run. If an agreement is reached both parties are bound by the agreement, much like a contract.

Is Mediation Right for My Issue?

In general, most civil disputes can be resolved through mediation, without filing a lawsuit. Both parties must voluntarily agree to participate in the mediation process or a court can order both parties to participate. In some cases the court must order mediation prior to the court resolving the dispute. Custody and visitation disputes are one example of when a court will order both parties to participate in mediation.

How do I start the Mediation Process?

Contact a mediator to begin the process; it is best to select a mediator with a track record of successful dispute resolution. Each court district within South Dakota does have court approved mediators, who can facilitate the start of the mediation process. A list of court approved mediators can be found by selecting the link called “Approved Mediators”. Conduct research to find out which mediator is right for you, including: asking friends and family, visiting the mediator’s website, calling the mediator to discuss your issue. It is important to select a mediator who understands your issue and can increase the likelihood of achieving a settlement.

What if mediation fails can the information I provide to the mediator be used against me in a subsequent lawsuit?

  • Generally no, the information shared within mediation is not subject to discovery in a court proceeding, so long as the information is relevant to the issue in dispute. This encourages both parties to openly and fully share information during the mediation process to increase the likelihood of a mutual agreement.
  • There are exceptions to this general rule, for information on those exceptions contact your mediator or attorney.

What are the Advantages/Disadvantage to Mediation?

Advantages
Disadvantages
  • Both parties retain control over the outcome of their legal issue
  • Mediation offers parties a much quicker and often cheaper alternative to resolving a dispute, than filing a lawsuit
  • Mediation is a voluntary agreement between both parties, if no agreement can be made during the mediation process the issue can still be addressed by a judge
  • All parties are required by law to abide by the voluntary agreement they entered into
  • Certain court protections are given up throughout the process, such as, the rules of evidence, limitations on discovery, procedural rules, and the ability to appeal the mediated decision
  • If no resolution is reach through the mediation process, then the parties will incur the costs of the mediation process (time and money) in addition to the costs of a lawsuit
  • Parties should be aware of the statute of limitations for their particular legal issue, in order to avoid mediation failing and then not being able to file a lawsuit due to a lapse of the statute of limitations


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