What is Mediation?

When a lawsuit is started, whether it’s a personal injury matter or a real estate dispute, both parties going in are often extremely adversarial towards one another. A lot of times, the parties say “they’ll never settle” or that they “want their day in court”. However, as the dispute makes its way through the litigation process, the parties routinely soften their hardened stance against settlement and look for ways to get the file resolved prior to its trial date. One very valuable tool in getting files settled is a process called mediation.

Mediation is a process where the parties agree to bring in a neutral third party to try and facilitate a settlement. The mediator does not have any bias towards either side and its only goal is to try and get the parties to come to an agreement. The mediators often times keep track of their settlement rate and are highly motivated to settling cases so that they’ll get hired again. The mediator is typically someone who is very familiar with the area of law of the dispute.

Prior to mediation, the parties come to an agreement on selecting a mediator. Once a mediator is chosen, each party will send the mediator confidential information regarding the file, highlighting the pros and cons of their case and a settlement range. The mediator then reviews each side’s information and comes to the mediation well informed on each side’s position. The format of mediation is typically called “caucusing”. This means that both parties and their attorneys are in separate rooms during the mediation. The mediator goes from room to room exchanging offers and counteroffers and also relaying important information to each side about the case along the way.

There are many positives to mediation. First, it’s very informal. Unlike a trial that is very formal, the parties can speak freely to the mediator. Mediation is confidential, meaning the mediator cannot reveal information to the other party unless expressly told to do so. Mediators also cannot be called to testify at trial and reveal what each party discusses in mediation. My clients like mediation because they are able to tell their side of the story without the anxiety of trial. Secondly, mediation typically occurs well before the trial date. This allows my clients to put the stress of their case behind them earlier and avoid ongoing court costs and attorney’s fees. Third, mediation puts the decision making in the client’s hands. The mediator and the attorney’s provide input throughout the process, but it’s ultimately the client’s decision on whether or not to settle. If the matter goes to trial, the decision rests in the hands of a judge.

Mediation plays a very important role in the litigation process. Courts typically require the parties to attempt mediation prior to trial. With that said, some cases just cannot be settled. For those cases, the court system is there to resolve the disputes.

Please send any request for topic suggestions to rene@breenandperson.com. Although we cannot give you legal advice through the column, we can provide some general information that may be helpful for you to know. Our purpose is to educate and we hope that you can take something new away from this column each time you read it.