MEDIATION 101

 

  • What is mediation?
    • A process to encourage settlement of a case with a neutral mediator guiding the parties and their attorneys (if they have attorneys)
    • A frank and sometimes difficult conversation about the issues that are important to parties involved in a dispute.
    • Talking about issues more than presenting evidence or taking sides
  • What mediation is NOT:
    • It is NOT a binding decision from a judge.  However, if you do settle a case in litigation, the end result will be a settlement agreement binding on everyone.
  • When can you mediate?
    • Any time!
    • You do not need to wait until it is court ordered.
    • You do not need to wait until you have an attorney.
    • When mediation is usually ordered by the court in Superior Court cases (those alleging that over $10,000 is in dispute).
    • Any time the parties believe their dispute can be resolved by a frank discussion of the issues.
    • Before or after you file a lawsuit.
    • You can even mediate your case after you have tried mediation before.
  • Why mediate?
    • You can resolve your case in one day, as opposed to lengthy litigation and missing work for a risky trial.
    • Because it is court ordered.
    • Because you have control of the process!
    • Because you can accomplish things in mediation that you may not accomplish in trial.  For instance, most trials result in a judgment that one party owes (or doesn’t owe) the other party a sum of money.  That’s it.  Nothing special there.  Trials do not offer the opportunity for the parties to craft special solutions to their problems
    • You can often maintain or salvage relationships that litigation might irreparably harm.  Again, a judge and jury are not going to help you with issues like an ongoing working or family relationship.
    • You can eliminate your risk of a trial, where judges and juries are unpredictable.
    • Finally put the matter behind you!
  • Who will be there?
    • All parties to the case (or in the case of insurance companies, their claims representatives)
    • All attorneys (note that you are not required to have an attorney to hold a successful mediation)
    • The mediator
    • Note that unlike a deposition, there is nobody taking down what you say.  There is no written record of mediation, unless a settlement is reached at the end of the day.
  • Who is the mediator?
    • Usually an attorney who has either been agreed upon by the parties or appointed by the court from a list of qualified mediators
    • It can be someone you and the other party agree upon
    • You can select a mediator before you even have an attorney!
    • The mediator is NOT a judge and will not decide the case like a judge, jury, magistrate, or arbitrator.
  • How does someone become a mediator?
    • Attorney-Mediators must take forty hours of course work, practice for five years, prove their good character, observe other mediators, and become certified to mediate cases in Superior Court.
    • The mediator usually knows nothing about the case before the mediation.  Sometimes he or she will have the complaint and answer to review, but more often than not, the mediator comes to the mediation “from scratch.”
  • What does the mediator do?  What does the mediator NOT do?
    • The mediator is best described as a facilitator—someone who helps the parties see the strengths and weaknesses of both sides of the case as well as the risks and potential payoffs of going to trial.
    • A mediator is also a translator—someone who can distill what each party is saying into something that the other party can understand and appreciate, even if they don’t agree with it.
    • A mediator is a sounding board—asking questions, highlighting facts, and presenting hypothetical situations that assist the parties in addressing their issues.
    • Often the mediator will not offer an opinion on the case itself, but may offer an opinion as a last resort and if the parties request it.
    • The mediator does NOT make a decision for the parties.  However, there is a process called neutral evaluation that you may also find helpful.
  • How does it work?
    • The following is the usual process, but the parties are free to come up with their own system for resolving the issues that are important to them:
    • The mediator will meet with all of the parties to start out and he or she will explain what mediation is—repeating much of what you are reading here.
    • At the conclusion of the mediator’s opening, both sides will have an opportunity to present a brief summary of the case.  There will definitely be some things that you disagree with in the other side’s summation of the case—otherwise there would not be a dispute!  But be patient.
    • After the opening session, the parties will go to separate rooms and the mediator will meet with one party—usually the plaintiff—to get more details and an opening offer to settle, if one hasn’t already been made.
    • Then the mediator will convey this offer of settlement to the other side separately and get some details of the case with this side.
    • The mediator will then go back and forth with offers and demands as well as questions, suggested issues to think about, and other ideas for settlement.
    • Hopefully, the end result will be a settlement that everyone can live with.  Neither side may be completely thrilled with the final outcome, but that is why it is called “settling” a case.
  • How long will it take?
    • Most mediations last at least about three hours.  Often the parties will be very far apart when the mediation begins and it takes some time to reach a settlement.  Often when you think that you are close to reaching an agreement, some little detail takes a long time to resolve—such as payment terms or deadlines.
    • Don’t try to read anything into how long the mediator spends with either side.  Sometimes the other side may just be more talkative.  Sometimes the mediator or the opposing attorney has more work to do to help change the value one side is placing on the case.  Sometimes one side has a very cut-and-dry approach to the numbers they are putting forward and therefore they don’t feel the need to spend much time discussing the merits of the case.
  • How much does it cost?
    • Morgan Law charges a onetime administrative fee (of $150.00) and then charges by the hour ($150.00 per hour) for the mediation.  The mediator fees are split by the parties equally.  Sometimes, as part of the settlement, the parties will agree that one party bear the entire costs of the mediation, but this only happens by agreement.
  • What do I need to do to prepare?
    • You do need to think of a ballpark figure that you are willing to accept or pay as a settlement of the case.
    • You also need to think of some creative options to settling the case.  Is there something other than money that you have to offer or are willing to accept?  Are you willing to settle under extended payment terms?  Do you need certain actions to take place by a certain amount of time?  Are there other issues between the parties that can be resolve while we are all at the table?  The more that you think creatively before and during mediation, the greater chance there is that the case will settle.
  • Can offers of settlement be used against a party later?
    • No.  Offers of settlement, even at a mediation, are inadmissible in court.  Therefore, you will not able to get up at trial and say “But you offered to settle this case for X dollars back at mediation!”
  • Is what I say confidential?
    • As a mediator, I will keep everything confidential that I hear during mediation, with a few exceptions:
      • When required or allowed to by statute—this usually only happens if a party has failed to attend or pay a fee
      • If there is a bar complaint surrounding the mediation
      • If there is an issue of the threat or actual occurrence of bodily har,
    • Within the mediation itself, I will share anything that anyone says with the other side if it may help with settlement UNLESS specifically told not to share it.
  • What happens at the end?
    • At the end of mediation, either a settlement is reached, written down, and signed by all of the parties, or the mediator declares an “impasse.”  An impasse means that the parties failed to reach a settlement.
    • Another option is that the parties may agree to keep a certain offer open for a certain amount of days past the mediation.  In this case, the mediation is considered to be at a “recess” until that offer is either accepted or rejected.
  • What if we do reach a settlement?
    • The parties will all sign a settlement agreement the day of mediation.  Sometimes a more formal agreement will be signed later, but unless both parties are unrepresented by counsel at the mediation, any document signed by the parties on the day of mediation is a legal and binding document that can be upheld against either party.
    • Usually the settlement includes a release of all claims and a dismissal of the lawsuit as well as confidentiality agreements (sometimes incorrectly called “gag orders”) and non-disparagement clauses (agreements not to talk negatively about the other side).
  • What if we don’t reach a settlement?
    • That doesn’t mean that the case won’t ever settle—just that it didn’t settle that day.
    • The case will then proceed as it was, with further discovery if needed and eventually a trial if the matter is not settled or dismissed in some other way.
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