Mediation is a method by which cases are resolved amicably and without the necessity of trial. Typically, both sides of a dispute agree to a mediator to handle the case (of course, mediation may consist of more than two parties, but for the purposes of this article, the two party mediation will be the topic). The mediator is usually a retired judge or practicing attorney who handle mediation cases for the majority of their practice (not always – some continue to practice law and mediate cases).
THE PROCESS
- The Position Statement
Once the date of mediation is scheduled, the mediator requests a Position Statement from both parties. This statement usually outlines and describes the issues and arguments from each side's perspective. In our Position Statements, we usually identify the parties, describe the facts, describe the damages, and list our arguments and positions. Sometimes, we add the positives and negatives of our case as well as the status of negotiations when appropriate. We also attach any pertinent documents the mediator should review.
- The Place
On the date of mediation, the parties and their attorneys, if involved (mediation can be done without attorneys), go to the agreed upon location for the mediation. Usually, it is done at the mediators office, but sometimes, mediation is conducted at one of the party's offices or, even, at the courthouse.
- Housekeeping and Opening Statements
Everyone gathers in the main conference room for the mediator to provide a description of the process and housekeeping issues such as bathrooms, coffee, lunch, etc. After this period, each side will give an opening statement which summarizes and presents their position to the other side. In recent years, this procedure is eliminated in some cases depending upon the mediators thoughts on the benefits of an opening statement after consultation with each side's attorney. In very significant cases, you might have power point presentations, Day-in-the-Life videos, and other presentations in order to drive the point home to the other side's decisionmakers.
- The Caucuses
At the conclusion of the opening statements, if done, each side goes to their separate office, and the mediator begins in one of the offices with one of the parties – usually in the office of the party whose turn it is to respond to the most recent settlement offer. In these caucuses, the mediator will discuss with the party and attorney the strengths and weaknesses of the case. Once concluded, the mediator will ask for an offer of settlement, and he/she will take that offer to the other side and discuss the case with them. During that time, the other party is sitting and waiting. You should probably bring something to read because this part of the process may get a little boring. The mediator will return with an offer from the other side, and he/she will continue this back and forth process until either a settlement or impasse is reached.
If a settlement is reached, the mediator will draw up a settlement agreement for both parties to execute at the mediation and consummate the agreement. If an impasse is the result, the mediator may get the attorneys together privately to see what their thoughts are and see if any further movement is possible. If not, the mediation is done, and the parties go home and get ready for trial; however, the mediator may keep in contact with each side over the coming weeks in an attempt to continue to try to get the case resolved.
SOME TIDBITS TO KEEP IN MIND
- Confidentiality
Mediation is totally confidential. Nothing said at mediation is admissible in court, and the mediator cannot be subpoenaed to court to testify. This facilitates candor at the mediation. Once the parties walk out of the mediation without a settlement, nothing said at the mediation can be used against them in the future. In addition, anyting a party says to the mediator during the caucus period cannot be repeated by the mediator without the express permission from the party or the party's attorney.
- Voluntary/Involuntary
Mediation can be voluntary or involuntary. Obviously, a voluntary mediation is one where both parties consent to the mediation. However, sometimes a contract provides for mediation before litigation, and sometimes the court orders mediation. In the latter event, a court can also appoint the mediator.
- Settlement Strategies
There are many methods to a side's approach to the negotiation process. The typical process involves the "tango", i.e.: back and forth and back and forth. Usually, in an injury case at least, the Plaintiff starts way too high, and the Defendant begins way too low. It is usually not good if you look at the other side's movement and play "tit-for-tat". On the other hand, you can sometimes figure out where one side or the other is going by looking at the midpoint of the two numbers. This is not really a good way to go about negotiating in my opinion, but it is a common practice. Another strategty is bracketing. This involves offering a range to the other side, i.e.: If you will move to $300,000, we will move to $500,000. This can narrow the range of negotiations.
- Everyone Present
Mediation is more for the parties rather than the attorneys. Consequently, it is always better if the defendant and/or the insurance carrier representative is present at the mediation. The Plaintiff is always there because the Plaintiff has to make the decision. This is not always the case with the insurance company, and not having the representative present can frustrate the process.
- Using Mediation as Discovery
Some parties use mediation as a discovery tool instead of attempting a settlement in good faith. This is a pet peeve of mine. Don't waste the mediator's or other party's time if you aren't going to negotiate and attempt to settle in good faith.
- Lunch and Mediation Fees
Lunch is usually included at the mediation, and we will normally mediate through lunch. The mediator fees include the cost of lunch, and the fees are split by both parties. A lot of times, the cost of mediation is part of the last offer in negotiations, i.e.: we will accept your offer if you will pay our half of the mediator fees. This used to be very common, but in recent years, defendants have been less willing to agree to pay this cost.
- Your Case – Your Control
Finally, mediation is a way for you to have control of the outcome of your case as opposed to leaving it in the hands of twelve people (jurors) who have never met you or your attorney and will only hear the case over the few days or weeks they are in court. You get to have your own input on whether or not your case gets resolved, and it is a process whereby you can end the stress and litigation at that moment – if the terms are reasonable. It is often said that a good settlement is where neither party leaves happy. However, if it is a settlement you can live with, it is usually better than trial.
I hope this helps explain the process a little bit. For more information, please call or e-mail our firm.
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