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Mediation

Mediation is a process in which a mediator facilitates communication and negotiation between parties. The mediator's job is to assist both sides 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 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. Alternatively, the court can order both parties to participate. In some cases, the court must order mediation before the court resolves the dispute. Custody and visitation disputes are examples of when a court will order both parties to participate in mediation.

How do I start the Mediation Process?

To start the mediation process, contact a mediator. It is best to select a mediator with a track record of successful dispute resolution. Each court district within South Dakota has court approved mediators who can facilitate the start of the mediation process. It is important to select a mediator who understands your issue and can increase the likelihood of reaching a settlement.

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

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 process, increasing the likelihood of a mutual agreement. There are some exceptions to this general rule. For more information contact your mediator or lawyer.

What are the advantages of mediation?

Both parties retain control over the outcome of their legal issue. Additionally, mediation is often quicker and cheaper than filing a lawsuit. If mediation doesn't work, the issue can still be addressed by a judge. Finally, all parties are required to abide by the voluntary agreement they entered into.

Are there any disadvantages to mediation?

Some court protections are given up in the mediation process. For example, the rules of evidence, limitations on discovery, procedural rules, and the ability to appeal the mediated decision. Additionally, even if the parties cannot reach an agreement, they still must pay costs associated with mediation. They will also have to pay costs associated with a lawsuit. Finally, there may be statute of limitations issues if the lapse of time is too great after bringing forth the issue.