Mediation is an informal process where the parties meet in a confidential settling with a neutral third party, the “mediator”, and try to resolve the dispute. Unlike a court proceeding, mediations are generally held behind closed doors. The mediator listens to the issues presented by the parties, and then proposes ideas that may resolve the conflict.
Selecting a Mediators
Mediators are generally selected by the parties based upon their experience. While mediators are “neutral”, their experience with many different types of cases increases their credibility to the parties. In many cases, the opinions of an experienced mediator may assist the parties in evaluating their positions.
Preparation for Mediation
Once the mediation session has been scheduled, the parties will prepare for the mediation session. If the mediation involves a pending court action, the parties will generally engage sufficient discovery (collecting evidence and documents) to make knowledgeable decisions at the mediation. Each party will then prepare a Mediation Brief which is provided to the mediator in advance of the mediation. This allows the mediator to get an overview of the claims, the legal issues raised, the parties evaluation of damages and other settlement issues.
The mediation session usually begins with a short joint session where the parties discuss the parameters of the negotiations. The mediation is confidential and the fact that something was said by a party in mediation can be held against the parties if the case does not settle. The parties and their attorneys will execute a confidentiality agreement. The parties are placed in separate rooms. The mediator typically moves between the parties rooms and meets privately discussing the case. The parties will discuss their evidence and arguments with the mediator, as the mediator methodically negotiates the settlement value of the case or other resolution. If an agreement is reached, one of the parties or the mediator will typically draft a brief Memorandum of Understanding which will then serve as the outline for more formal settlement documents.
Advantages of Mediation
By participating in mediation, the parties are in position for an early resolution of the case. By settling the case, parties have control over the outcome. Without a pretrial settlement, the parties are faced with having a judge or jury decide the fate of their case. In other words, one side loses and one side wins. By proceeding to trial, both sides may lose in terms of lost time, attorney’s fees and litigations costs. From the plaintiff’s perspective, the longer a case drags on, the more anxious the plaintiff may become. Without resolution, a plaintiff will go through necessary depositions and an extended period of stress over the eventual outcome. For many defendants, particularly if they are companies, litigation is seen as a drain on the financial resources of the company. By resolving the case early, each party can put the matter to rest.