In mediation, a neutral third party assists the parties in reaching a mutually acceptable settlement. Mediation is often undertaken after negotiation has reached a stalemate, or it may occur in the absence of any direct negotiation between the parties. It is defined most simply as facilitated negotiation. Mediation involves the parties as decision makers. There is no neutral decision maker, nor are there formal proofs or arguments. Unlike other litigation processes, it is informal, flexible, and safe.
What Happens In A Mediation
Mediation sessions may range from one-half day to a day or more, depending on the case and depending on how much progress is being made. Mediation sessions are informal and usually occur in the mediator’s office or some other convenient location. The process will vary based on the nature of the dispute, relationships of the parties, and time allotted.
In many cases, there will be an initial joint session attended by all parties and their attorneys. It will include an introduction of everyone attending and an overview of the process. This initial joint session may include a short presentation of their cases by each attorney, without comment or discussion. A decision regarding the initial joint session will be made following pre-mediation phone calls between the mediator and the attorneys.
Most of the time spent at mediation will involve private meetings, or caucuses, between the mediator and each side. The private sessions allow each side to explain and enlarge upon their position and mediation goals in confidence. The mediator will hold everything that is said in private sessions confidential and will not disclose confidential information to the other side without permission. There will be agreement, however, on points that a party would like the mediator to discuss in caucus with the other side in order to improve a bargaining position.
During the course of the mediation, the mediator may have private meetings with attorneys, if such discussions will assist the process.
In many cases, there has been some negotiation between the parties before arriving at mediation. If so, the offers and demands become the starting points. In the negotiation phase, the mediator will suggest and assist the parties to develop a negotiation strategy and develop offers which are credible but also leave room for movement. When and if the mediation process reaches the point that all parties can agree on settlement, the terms will be reduced to writing, signed by the parties and their attorneys, and that signed agreement becomes an enforceable contract.
Why Do It
Witnesses who seem intelligent and credible throughout pretrial encounters can become rattled, defensive and unlikeable on the witness stand. Judicial rulings can create problems. An attorney usually knows what evidence will be challenged and may confidently predict the appropriate judicial ruling. However, a trial axiom is that judicial rulings are frequently not as the attorney expected and may dramatically affect the predicted outcome. Cases are won and lost based on how the uncertainties play out.
Ninety-five percent of cases settle, and mediation offers significant advantages to permit litigants to achieve the best possible settlements.
1. Control of Costs
The cost of litigation is huge. Much of it is often driven by the conduct and strategy of the opposing party. As the battle escalates, so do the costs. Attorneys’ fees and costs in pursuing or defending a case through trial can sometimes exceed the amount in dispute.
2. Management and Control of Risk
Trial is a form of legalized gambling – a crap shoot. Jurors will be judging theories, positions, law, and lawyers. They invariably judge parties and witnesses, and one person’s evaluation is not going to be identical to another’s. The case that a party understands and feels confident in may not be the same case that an individual juror perceives, although everyone is presented with the same information.
Each case is different, but there is always a common denominator – uncertainty. Uncertainty regarding when a case will get to trial; the judge who will be managing the trial; key rulings; and, the jury itself. Leaving an important decision in the hands of 12 strangers should happen only when you have made your best effort to have control over the outcome through a fair settlement.
A trial is public. A mediation is conducted in a private and confidential manner, and is governed by laws which are designed to protect the privacy and confidentiality of the process.
4. Stress Reduction
Every attorney who has tried any significant number of cases knows too well the stress involved as trial approaches, which then escalates considerably throughout the trial. Most parties, however, are not professional litigants, and they seldom appreciate the debilitating effects of the constant pressure of trial. Trial will never be mistaken for a pleasant life experience.