As long as the parties are willing to participate in good faith, mediations can be very successful in resolving disputes.
The Court has suggested that the involved parties “Mediate” your case. Mediation is a meeting scheduled for the purpose of attempting to settle a case and to avoid the risk and expense of trial. Participation is voluntary, and a third person known as a “mediator” works with the parties and their lawyers to help reach a settlement. The mediator is usually a retired judge or an experienced attorney. The mediator manages the mediation session and remains impartial. However, unlike an arbitrator or a trial judge, the mediator is not a decision-maker.
The mediation process is private and confidential. At the outset of the mediation, the parties and their lawyers sign an agreement that everything that occurs in the mediation will remain confidential. During the mediation, the parties cannot be forced to disclose information that they prefer to keep confidential. If, in order to promote resolution of the dispute, a party chooses to disclose confidential information or make admissions, that information can never be used at trial or any other court proceeding.
The confidentiality of mediation allows the parties to negotiate more openly and productively, without fear of retribution. The power of mediation is that parties control the outcome of the case, not a judge or a jury. The participating parties usually share mediation expenses equally unless they agree otherwise. A mediator’s fee is comparable to an attorney’s fee. As long as the parties are willing to participate in good faith, mediations can be very successful in resolving disputes.
The process of mediation is a little unusual. Typically the parties are a little nervous at first, but the process is not intimidating at all. In fact, clients often complain during the process that it is almost boring. The mediation usually begins with each party and his or her lawyer being directed to a private room which will remain their room for the duration of the mediation. The opposing party is in another room with his or her lawyer. It is often the case that the parties and their opposing lawyers never see each other at all during the process.
The mediation begins with the mediator visiting each party and their lawyer for introductions. Often times that mediator will ask questions about the party’s legal position. In advance of the mediation, each lawyer typically prepares and sends a document to the mediator that outlines in detail what the position of the party is. As you can imagine, the positions of the parties are usually quite different. It is important for the mediator to understand the differences and their relative merit.
The mediator then leaves the room and goes to visit the other party. It is not unusual to not hear from anyone in the mediation for another hour, sometimes longer. Eventually the mediator returns and asks for an offer or demand from the party. The mediator also discusses what he or she learned by talking with the other party that the mediator thinks will assist us in evaluating their position. The mediator then leaves to convey our offer or demand.
This process continues for the duration of the mediation. Typically with a little persuasion from the mediator, the parties grow closer in terms of what they wish to settle the case for. More often than not, the mediation is successful and a settlement is reached. The parties work in conjunction with the mediator to draft an agreement, and the agreement is signed by the parties and their lawyers. The agreement is legally binding and can be enforced by the Court if either party changes its mind. If no settlement is reached, the parties proceed with the litigation and often the case goes to trial.
During the mediation process, both sides are evaluating their positions and gearing up for trial. Therefore, it is very important to appreciate the positives and negatives of your case. Be completely candid with your attorney and discuss your case. While you should come to the mediation with some practical goals, try to keep an open mind and be prepared to revise your position should new information surface during mediation. Mediation can last for several hours, so it is imperative to try and maintain a positive and fresh attitude throughout the process.
Although it is not necessary to wear a suit, jacket, or tie, we recommend attending the mediation session in “business casual” attire (i.e., a collared shirt, slacks or khaki pants, and dress shoes). T-shirts, jeans, shorts, baseball caps, tennis shoes, and flip-flops should be avoided. While we have attempted to tell you as much as possible about the process, it is not unusual for other questions to come up. Please do not hesitate to call us and ask if you have any other questions or concerns about mediation.