A Brief on Mediation

Mediation is an important step in the litigation process, but many litigants are unaware of what it is.

What is mediation?

The mediation is usually attended by all parties to the action represented by their lawyers and conducted by a mediator. The mediator is a neutral third party hired by both sides in order to try to negotiate a settlement. This is an alternative dispute resolution mechanism because the parties agree to the terms of the settlement, which is conducted outside the court process. In fact, mediations are completely confidential to promote open and frank discussions during the negotiation in the hopes of reaching a reasonable settlement.

What is the mediation process?

Your lawyer should meet with you in preparation for the mediation and go over reasonable expectations for the outcome. A mediation brief will be drafted by your lawyer who should go over it with you in detail. This is an opportunity to present your position in writing to the other party.

At mediation, the parties initially all get together in the same room with the mediator; this is called the joint session. Opening statements, which are usually made by the lawyers, are important because this is an opportunity to present your position orally to the other side. Then the parties separate into different rooms for the caucus, where each side discusses its case with the mediator who acts are a proxy to bridge the gap between the parties.

Both the mediation brief and opening statements are advocacy tools that if used properly can be very effective in making your position more persuasive. The client may also speak on his or her own behalf during the joint session. This can be both a cathartic and effective process to help each party understand the others position leading to compromise and hopefully settlement.

What is the goal of mediation?

A mediator once described a successful mediation as when neither party leaves entirely happy because both had to compromise on their position to some extent. This is a very true statement because a mediation is a bargaining exercise where a price is fixed for selling legal rights.

At the end of the day litigation is about compensation, which means the ultimate result is money. Therefore, money is offered in exchange for not pursuing legal action. The objective is to find the appropriate value of the rights. The party paying should leave feeling like they paid too much and the party being paid should leave feeling that they received too little because this means that each has compromised in reaching a settlement.