ADR: Paths to Settlement
Frequently Asked Questions
What is mediation?
If you are involved in a lawsuit at a Magistrate Court, you may be able to resolve it by participating in Mediation.
Mediation is one way for people to settle disputes. In Mediation, the people involved in a dispute talk about solutions that might work for them. The people who help them work out a solution are called Mediators.
Mediators do not decide who’s right or wrong or who wins or loses. The purpose of a Mediation is to find solutions that meet the needs of the people involved in the dispute.
What can mediation do for me?
Mediation can help you resolve the problem that has brought you to Court. The best resolution to any problem is usually the one worked out by the people involved. Through mediation, people have more control over the outcome of their case than if a judge or jury decides the outcome.
Mediation is an informal process, although the mediator does provide structure. Most people find it a comfortable and productive process. Many people prefer to take an active part in solving their own problem, rather than waiting for a Judge and/or Jury to impose a solution.
Is mediation available at my court?
Currently, the following Magistrate Courts have a mediation program.
- Curry County Magistrate Court in Clovis
- Doña Ana County Magistrate Court in Las Cruces
- Sandoval County Magistrate Court in Bernalillo
- Taos County Magistrate Court in Taos
- Valencia County Magistrate Court in Belen
- Valencia County Magistrate Court in Los Lunas
Do I have to mediate?
The judge has ordered your case to mediation and you are required to show up to the mediation just as you would be required to show up for a hearing or trial. However, no one will be forced to agree to anything they do not want. If you don’t reach agreement during mediation, your case will go on to trial.
What will happen if I don't show up to the mediation?
Failure of a party to participate in mediation as ordered may result in sanctions for contempt of court, assessment of costs, and reimbursement to the other party for attorney fees and/or lost wages.
If you do not appear as ordered by the court for mediation, and the other person does appear, the court may, after a hearing, grant appropriate relief to the other person. This could include assessing costs against you to reimburse the other party for attorney fees or lost wages.
How long will the mediation last?
Mediations can last between 30 minutes and 2 hours.
Who will attend the mediation?
The parties named on the Complaint/Answer must be present for the mediation. Persons attending the Mediation should have the authority to negotiate and enter into a settlement agreement (if one is reached).
If you want to bring anyone else who is not a party to the lawsuit to the Mediation, it must be okay with the other party. Everyone must agree about who will attend the Mediation before it takes place.
Please do not bring witnesses or children to the Mediation.
Can I bring my attorney/spouse/friend/business partner?
Other people may attend the mediation only if everyone agrees that they can be in the room.
–Other people are welcome to sit in the waiting area and if you need to consult with them before making a decision you will be able to take a break in the mediation to do so.
Attorneys may attend the mediation with their clients, but the parties do not need to have an attorney present.
If you need to consult with an attorney/spouse/friend/etc. that is not present, you will be able to take a break to make a phone call to do so.
Please do not bring witnesses or children to the Mediation.
Who will be the mediator(s)?
Each court that participates in the Magistrate Court Mediation Program has a pool of professionally trained Mediators who offer their services free of charge. Each mediator has been certified by the Administrative Office of the Courts; however, the Mediators are not employees of the Court.
Mediators do not take sides and they know how to deal with situations that can sometimes be tense or emotional. They DO NOT give legal advice, provide legal services, decide who’s right or wrong, or decide who wins or loses.
Is mediation confidential?
Yes. Whatever is said in Mediation (offers, etc.) cannot be used as evidence in Court. Also, the mediators cannot be called as witnesses in court.
How does my case get to mediation?
Cases are selected for mediation after the Defendant files an Answer.
The process for selecting cases for mediation differs slightly in each Magistrate Court. In ALL of the participating Magistrate Courts, however, the judge or judges have determined which cases are appropriate for mediation.
If your case was not selected for mediation but you would like to mediate, you may contact the court and ask that your case be assigned to mediation.
What will happen at the mediation?
The Mediators and the parties will sit around a table in one of the Magistrate Court’s Mediation Conference Rooms. You and the other party will have the opportunity to talk about what has happened and what is important to you. You will talk about different ways the case might be resolved. The Mediators will ask questions, try to help clarify issues, and try to make sure each party is understood and acknowledged.
If you resolve your case through Mediation, an Agreement will be signed by all parties and will become part of the case file unless the parties want the Agreement to be confidential. The case will not have to proceed to Trial, and a Stipulation of Dismissal will be signed.
What should I bring to the mediation?
Bring any documents – statements, invoices, photographs, etc. – that are related to, or support your claim or defense.
Will I have to make a decision that day about whether to agree to settlement?
Many times people reach an agreement during mediation, but sometimes people need additional time to gather more information, “sleep on it,” or talk to an attorney/family member/friend.
You will be able to set up a second mediation if one is needed, or simply take more time to decide how to proceed. The mediator(s) will talk to you and the other party about what options will work best for you.
Do I have to be willing to compromise?
No. You may or may not reach an agreement. Some mediated agreements involve compromise, but not always. No one will be forced to agree to anything they do not want.
Even if the parties do not reach an agreement through Mediation, they have had the opportunity to talk about the situation and share their perspective about the dispute. It may help them be better prepared to go to Court.
ANY AGREEMENT YOU REACH IN MEDIATION IS VOLUNTARY. YOU WON’T BE REQUIRED TO AGREE TO ANYTHING UNLESS YOU WANT TO.
How can I prepare myself for the mediation?
Think about what you want to discuss and what’s important to you. Think about the following questions:
What is the best result I can hope for?
What is the worst result that could happen?
What might be a sensible, realistic and fair resolution?
What if the other party does not abide by the agreement?
Most times, people follow through on their Mediated Agreements. If the Mediated Agreement is not followed, a party may, within five (5) years of the Dismissal, file a Motion for Judgment and Statement of Non-Compliance, together with a copy of the Mediated Agreement with the Court.
The Court will reopen the case. The other party (who has not followed the Agreement) will have fifteen (15) days (after service of the Motion) to respond and request that a hearing be set before the assigned Judge. If the party does not respond or request a hearing, the Court may enter a Judgment against the party who did not follow the Agreement without holding a hearing.
What happens if we don't agree/Mediation doesn't work?
The case will be sent on to the assigned Judge and set for hearing or Trial. The mediators will not tell the Judge what happened in the mediation. They will simply report that a mediation was held, but no agreement was reached.
Can I mediate by phone?
Sometimes one or both of the parties live out of town and would prefer to avoid traveling to court if possible. In some courts, you may attend the mediation by telephone.
If you wish to attend the mediation by phone, please contact the court to make arrangements well before the date of your mediation. The Judge may require you to file a motion to appear telephonically.