Mediation Explained

mediation graphicWHAT IS MEDIATION?

Mediation is a form of negotiation: the parties reach agreement voluntarily and thus retain the power to set the agenda for discussion and the ultimate agreement reached between them.  The neutral mediator, unlike a judge, acts as a catalyst for this process; he or she can’t compel disclosure of information, and doesn’t  render a judgment after hearing from the parties.  The mediator serves as a “go between.”  He or she funnels information, proposals and counter-proposals between the parties until an agreement is reached.

WHY MEDIATE A CASE - MEDIATION BENEFITS

  1. Closure:  The case is over, usually a quick resolution following a mutual agreement that avoids uncertainty of trial results.
  2. Control of outcome: Result not decided by 12 strangers on a jury. The mediation process is confidential, and if an agreement is reached, the terms become enforceable by a court. 
  3. Parties get their “day in court” without a judge or jury making decisions.
  4. Litigation costs are controlled, since mediations are generally short, while trials are lengthy and expensive.
  5. Credibility: Agreeing to mediation shows that defendant is willing to take responsibility for his or her actions which caused someone to suffer damages.
  6. Process is not adversarial: The focus of mediation is on compromise through negotiation and persuasion. The purpose of the mediation session is to evaluate the potential risks which continued litigation presents, not just focus on who is right or wrong.

STRUCTURE OF MEDIATION

Either side may propose entering into mediation, or mediation may be court-ordered.  A mediator is selected by the parties and a mutually agreeable mediation date is arranged - - clients with ultimate authority to make compromises and settle the matter must be at mediation for it to be effective.  Plaintiff must attend in person.

Both sides have the option to submit pre-mediation letters to outline issues for the mediator.  Parties may choose to share pre-mediation letters with each other or not.  If letters are not shared, Parties may indicate to the mediator that certain portions of the letters should remain confidential, even at mediation.

Joint sessions may be held with all parties and participants present, but not always.  The choice and format of a joint session varies according to the wishes of the parties and/or the judgment of the mediator. One goal of a joint session is to establish good rapport between the participants.  The tone set during the joint session can be a powerful influence on the outcome of the mediation.  If the true goal of the parties is mutual compromise, a conciliatory tone is important to establish in joint session.

Caucusing.  Following a joint session (if any) the mediator meets with the Parties separately.  Caucusing usually begins with discussion between the mediator and the injured party to review the liability facts and damages.  This is the best chance for the injured party to be heard.  The mediator subsequently meets with the opposition and goes over the strong and weak points of each side’s case.  Defendants usually provide the mediator with their own “best-case result” if the matter were to proceed to trial.

Mediator may ask both sides “devil’s advocate” type questions – how much will it cost to try the case?  What are the changes of success/failure on issues in the case?  What would a jury do for Plaintiff on his best day?  What’s the probable best result the Defendant might expect?  What’s the value of settling today versus unknown trial result in two years?  In the event of an adverse verdict, is an appeal likely and how long would that take? 

At the conclusion of a successful mediation, the parties sign an agreement which details the terms of settlement.