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What is Mediation?Posted August 04, 2017
By Jonathan A. Karon
Mediation is a non-binding settlement conference with a neutral third person, usually a retired judge or an experienced lawyer, who attempts to assist both sides in reaching a settlement agreement. Although the mediator can recommend a settlement, the mediator has no authority to order the parties to settle. This means the case only settles if the agreement is acceptable to all parties. It is a confidential process, meaning that anything discussed, including any settlement offers or demands, can’t be used as evidence in a lawsuit.
Mediation is usually a voluntary process, meaning that it only occurs if all parties agree to attend.
This is an important protection as it means that everyone not only has to agree to go to mediation but has to agree on who will serve as the mediator. This protects against having a mediator that favors one side or the other or who lacks the background to be effective for the particular case.
Depending on the complexity of the case and the number of parties involved, a mediation will usually be scheduled for half a day (morning or afternoon) or a whole day session. Usually, at the start of the mediation, all the parties and their attorneys will meet in a conference room with the mediator. The mediator will usually introduce themselves, explain the process and give each party an opportunity to explain their position. Then each of the parties will go to a separate conference room and the mediator will meet privately with them. The mediator then shuttles back and forth between the parties conveying revised offers and demands and any other information they have been authorized to convey. If a deal is reached, the mediator will usually have the parties sign a memo confirming the essential details. If, at the end of the session, no settlement is reached, the mediator and the parties will usually meet together, in an attempt to leave the door open for future negotiations.
A good mediator can cut through settlement posturing to determine if there is a possible deal that all parties would accept. In a civil case, a mediator will usually also provide their opinion as to the likely outcome if the case is decided by a jury. These are reasons why the selection of a particular mediator is very important.
Just because a case doesn’t settle at a mediation doesn’t mean that the case won’t settle. I have handled cases that required two or three mediation sessions, months apart, to settle. I’ve had other cases that didn’t settle at mediation, but that settled in subsequent negotiations. Sometimes the best thing you can do to settle a case is to reject a proposed settlement at mediation, which shows the other side that you are serious about your position. I’ve also had cases that didn’t settle at a mediation which I had to try to a jury verdict. Even in those cases, mediation was useful because it demonstrated that the defendant was unwilling to make an acceptable settlement offer. I have no problem with going to trial (in fact, I actually enjoy it) but it doesn’t make sense if the defendant is actually willing to pay a figure the client would accept.
I generally recommend my clients agree to mediation, assuming that three conditions are met. The first is that I believe the defendant is sincerely interested in resolving the case and is willing
to negotiate in good faith. The second is that scheduling the mediation not delay the trial of the case. In my view, nothing promotes settlement like an imminent trial date (and a plaintiff’s attorney who is ready and willing to try the case). Third, the other side will agree to a mediator that I have confidence is both skilled and not biased. When those conditions are met, mediation has a high chance of success.
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