A Walk-Through of the Mediation Process

The court system has an adversarial structure. Generally, there is a winner and a loser, and the results of a court order or final decision are unpredictable. The litigation process can also be time-consuming and expensive.

Mediation is an alternative to formal court proceedings. Benefits of mediation include time and cost savings, individualized outcomes, and confidentiality. Mediation is useful for a wide range of legal issues, including:

• Family law matters such as divorce and child custody
• Business and contract disputes
• Real estate and landlord-tenant issues
• Employment and discrimination claims

For legal advice about using mediation, talk to an alternative dispute resolution (ADR) attorney.

Understanding the Mediation Process

“The mediation process begins with the two sides getting together in the conference room and the mediator making a few preliminary remarks,” says experienced mediator Richard F. Griffin. “I customarily explain the role of the mediator and that they’re not part of the court.”

The mediator is not a judge and cannot tell anyone what to do or settle for. “As mediator, I’m basically the chairperson of the meeting, whose role is to coordinate discussions. Mediators are neutral third parties. We are facilitators and have no bias or feeling towards one side or the other.”

“As a mediator, you have to be comfortable with people’s conflicts,” adds Maribeth Blessing, an attorney and mediator in Rockledge, Pennsylvania. “Sitting in the fires of conflict, we are able to get everything on the table. We follow people’s conversations and offer tools to get over impasses in order to find resolutions.”

Preparation for Successful Mediation

“Many mediators, a day or two before the mediation session, will call each party’s lawyer separately to discuss what their client expects to achieve in the mediation,” says Griffin. “Sometimes we’ll discuss negotiations that have already occurred.”

There is also a mediation submission, which is a written document that each side presents to the neutral mediator several days in advance. These documents provide the background and factual and legal bases that support each party’s claim or defense. It is important that the mediator receives effective submissions.

“Once all of the feelings and issues are placed on the table, we can drill down on the conflict,” Blessing says. “Most of the time, people come from a place of fear. If you can get down to the roots of that fear, often you can fix it.”

What Happens on the First Day of Mediation

The lawyer for each side generally starts the mediation by making an opening statement outlining the basis of their client’s claim or defense. Sometimes, negotiations begin with everyone present.

However, Griffin notes that in most cases, particularly where the parties “can’t stand to be with each other,” the parties proceed to the caucus, which is private meeting in a separate room with the client, lawyer, and mediator.

First Private Caucus

The first caucus is usually with the plaintiff and their lawyer. The first question is generally, “What is your settlement demand?” In many instances, especially personal injury and wrongful death cases, the settlement demand is for payment of a sum of money, says Griffin. However, many cases include other items in the settlement demand, such as reinstatement in an employee’s suit against the employer.

It’s not unusual for a mediator to politely criticize a party’s demand or offer. For example, I am concerned that the amount of your first demand could discourage the other side from continuing meaningful discussions.

Second Private Caucus

Next is the second private caucus, which is with the opposing party or parties in the case.

“It’s a fundamental principle of mediation that the mediator may not convey to the other side a settlement proposal unless there is express consent that the mediator may pass on this information,” says Griffin. “It is not unusual for the various meetings and caucuses to take a considerable period of time and go into the late evening.”

“We open the doors of possibility and use a transformative model of conflict resolution to empower people to make the choices that are best for them — to have them walk through those open doors to resolution,” Blessing says.

Confidentiality in the Mediation Process

A mediation proceeding is confidential. If someone makes a certain statement or admission during the course of the mediation, it may not be used at any later date.

For example, in a deposition, a lawyer could not ask a party, “Did you not make the admission during the mediation that your client went through the stop sign?” The court is not advised of what occurred during the course of mediation.

The mediator informs the court that mediation has occurred and the case is either settled or not settled.

Putting Mediated Agreements in Writing

It is important that any settlement agreement be put in writing to make it legally binding.

A party may agree orally to the settlement, but after discussing it with a spouse or business partner the next day, they hear this comment: “You didn’t get a very good deal.” Then there is a change of heart, and the oral acceptance of the settlement at the mediation has no binding effect.

Next Rounds of Mediation

Some cases do not settle at the first mediation, in which case it’s necessary to bring the parties back to the mediation table.

“Generally, it is my judgment that the highest rate of settlement occurs when both parties are very sincere and anxious to put the lawsuit behind them and go on to other matters,” says Griffin. “Many times, the problem in getting a settlement is a strong emotional element. Under no circumstances will I permit my company to pay any money to this employee.”

Factors To Convince Parties To Settle

Mediators use many approaches to convince parties to settle:

• The costs and risks of litigation, an unfavorable court ruling, or a jury verdict are major factors
• The expenses of litigation — such as depositions, court motions, trials, expert witnesses, and appeals — are important to consider

“In my view, closure is the paramount consideration and goal of mediation,” says Griffin. “Lawsuits are not happy items to live with. The parties are emotionally involved. They’re inconvenienced in their daily lives and businesses, worried about depositions and chasing down records, and uncertain about the outcome of their case. Closure brings all this to an end. The dispute is over — on with your lives.”

Find an Experienced Mediator for Your Legal Dispute

Mediation services put decision-making power in the hands of the parties. It allows you to get to your bottom line more quickly and efficiently and move on with your life.

If you need to resolve disputes without going through litigation, use the Super Lawyers directory to reach out to an experienced, reputable mediator in your area today.