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Q
What is mediation?

A

Mediation has become a popular procedure used by parties and their lawyers to help them reach a settlement without having to incur the costs and risk of loss associated generally with having to go to trial. Mediation is essentially a settlement conference presided over by a third party referred to as a "mediator."  The mediator is the person who presides over the mediation and assists the parties in conducting the settlement negotiations during the settlement conference. Mediation has now become a common procedure used by a number of parties and their lawyers in a civil dispute to assist them in trying to reach a settlement in a civil setting.

Idaho has no requirements to become a mediator. The parties are free to select anyone to act as a mediator in their case. If either party refuses to participate in a mediation, the Court has the power to order the parties to attend a mediation and to divide the costs of the mediator between the parties equitably. The Court also has the power to order the party’s claims representative or person with settlement authority to be present during the mediation.

In Idaho, the Supreme Court maintains a roster of people who are willing to act as mediators in any given case. The Supreme Court maintains two rosters of mediators; one is for civil disputes and the other is for family law - specifically involving child custody.

In order to be listed on the Idaho Supreme Court’s roster as a mediator involving a civil case (not involving child custody), the mediator must meet the following requirements, namely:

1) Be a member of the Idaho State Bar;

2) Be admitted to the practice of law for a period of no less than 5 years; and,

3) Attend at least a minimum of 40 hours of specialized and approved training as a mediator every two (2) years.

Oftentimes, the mediator will meet with the parties and their counsel at the beginning of the mediation to explain the role of the mediator in the case. Typically, the mediator will remind the parties that the mediator has no decision making authority in the case, and the mediator’s presence is to facilitate the mediation by helping the parties reach a resolution of the case. After the mediator meets with the parties, the parties are then divided into separate rooms where the mediator then goes back and forth between the parties to gather information which they wish to convey to the other side along with a settlement proposal. This continues until the parties reach either a resolution/settlement of the case or a point where the mediator declares that the parties have reached an inpasse and the mediation is then concluded.

The overriding number of cases that are now filed result in the parties reaching a settlement without having to go to trial. Mediation is one of the tools that attorneys use to help their clients reach their objectives in the case without having to incur the costs and risk of loss associated with having to go to trial.

Alan Morton
Advocate for Justice/Trial Lawyer