A mediation is one type of alternative dispute resolution. That means it gives you a chance to resolve your case without a trial, on your own terms. Mediation can occur at any time, before, during or, in rare circumstances even after a trial. Most often mediation is held after the Court has heard any summary judgment motions that might have been held and trial will be the next step.
A mediation involves the employment of a neutral party, typically a lawyer, who has no relationship to the case or any of the parties or counsel. Your attorneys will work with the opposing attorneys to find a mediator that is agreeable to all involved. Typically, the mediator will have good social skills to make the process easier for you and good legal knowledge so that he or she can explain the pros and cons of your case. It is an informal process, at least compared to a trial – no need to dress up or call the mediator by a special title!
The mediation may occur at the mediator’s office, or at some other location, like a court reporting service. Mediation may also occur entirely by Zoom (or a similar platform) or with some parties in person and others on Zoom.
Mediators generally provide the parties with an engagement letter, explaining the process in more detail. Mediations are almost always confidential, so you can tell the mediator (and even the opposing side), things that you would not say outside this process. Of course, your attorney will advise you on what to say and when.
Mediations traditionally began with all parties and counsel in the same room. The mediator would introduce themselves and explain the process. Often, both sides attorneys would make opening statements, arguing the strengths of their cases and the weaknesses of their opponents’ position. In recent years, many mediators have moved away from such a joint session, in favor of speaking to each party privately.
The majority of the mediation has the parties placed in separate rooms. The mediator will often start with the plaintiff, trying to make them feel comfortable and giving them the opportunity to share their feelings about the case and the underlying event. You can generally talk with the mediator as much as you would like, or allow your attorney to handle the conversation.
Eventually, the mediator will request that the party provide a demand as to the amount they are asking for to resolve the case. Absent something very unusual, this number is not the number that the case will ultimately settle for. In other words, you and your attorney may think the case is worth $100,000, but initially demand $300,000.
The mediator will then visit with the opposing side. This can lead to a very boring day, with lots of time sitting around while the mediator is in the other room. Again, the mediator is explaining strengths and weaknesses of the case to the other side. The mediator’s job is to get the case settled, not to provide a win for either party. As a result, he will typically be telling the opposing party about the problems with their case and the strengths of yours, while he is telling you about the problems with your case and the strengths of theirs. After a time, the opposing side will provide the mediator with a counteroffer. It may be extremely low to start out, say $5,000 in response to the $300,000 demand, but again, just like your figure, this is just a starting point.
The process will go back and forth, often many times, over the course of a day. The mediator will likely emphasize issues about the risk involved with your case. In other words, a lawyer cannot guarantee you will win at trial, no matter how strong your case is, so a risk analysis is important. The mediator could say something like you have a 3 in 4 chance of winning, but there is still that 1 in 4 chance you lose everything. So solving your case at mediation gives you certainty – you may only get $75,000 instead of $100,000, but you know you are going to get it for sure. The mediator will also likely bring up the issue of time. In other words, you can have the money within 30 days, rather than waiting another year for a trial setting, and even longer if there is an appeal.
Ultimately, mediation gives you the choice – control over what you will or will not settle for – rather than waiting and having the chance you could get nothing. The line in the sand, the amount you will not take less than, is a decision you make, with advice from your attorney.
