If you are contemplating a lawsuit, or perhaps just filed one, you have probably heard that the court requires the parties to “mediate” the case. What is mediation, and is it something you want to take part in?
Mediation is a type of “alternative dispute resolution.” Simply put, it is a formalized method by which you attempt to settle your lawsuit before going to trial. It is often confused by lawpersons with arbitration, which is an alternative form of trial judges rather than an actual judge and jury.
How does a mediation work? Typically the parties agree on a mediator as the first step. The mediator is typically an attorney or retired judge. The choice of mediator is very important. An inexperienced or unmotivated mediator will not be effective in driving the mediation process to a successful resolution. Experienced trial attorneys will know the right mediator for the case, and will insist on using the right mediator in your case.
Once the mediator is selected, the mediator process typically begins by having all the parties meet and their representatives meet in one room. The lawyers for the parties typically give a presentation of what they believe the evidence will demonstrate at trial, and try to highlight the strengths of their case, and the weaknesses of the other side’s case. It is not uncommon for the plaintiff to explain how the defendant’s conduct has personally impacted him or her, and also not uncommon for the mediator to ask questions of both sides to help clarify certain points and potentially to highlight key issues in the case which parties may not have fully appreciated before the medication begins.
At that point, the parties typically separate and go into different rooms. It is at this point that the plaintiff makes a demand for a certain amount of money (which is typically much higher than what their attorney ahs told them to expect as an end result) and the defendant makes an offer to pay the plaintiff a certain amount (almost always much lower than what they actually expect to pay) of money to dismiss the case. The mediator then goes back and forth between the rooms in a process of “shuttle diplomacy.”
During each visit with the mediator, the parties discuss the amount of their demand or offer the settle, and the strengths and weaknesses highlighted by the other side. The goal is to keep reducing the plaintiff’s demand, and increasing the defendant’s offer, until they meet at some point. If they meet, then the case is settled. If the defendant is unwilling to pay the lowest amount the plaintiff is willing to accept to settle the case, then the mediation will end and the parties effectively pretend it never happened.
In a successful mediation, the parties decide the outcomes of the case, rather than allowing a third party to do it for them. If the mediation fails, then the parties simply proceed to trial, and treat the mediation as if it never happened. The jury never hears about what happened at the mediation. Everything that happens at the mediation is kept strictly confidential, to encourage the parties to be open and honest about their case and make the best effort possible to resolve it.
Successful mediations depend tremendously on the skill and experience of the parties’ counsel and the mediator. Picking the right mediator is crucial, but having the right attorney is even more important. An experienced trial attorney will have the experience to value your case, and to make the most effective use of the mediation process to get the other side to pay the most money they are willing to offer, and not take the risk of undervaluing your case.
Considering that most cases settle before trial, and many of those settle in mediations, it is important to choose the right attorney to handle your case in order to ensure your case is worked to get you the full compensation you deserve.