What Makes a Successful Mediation?
New York mediator Richard F. Griffin on the mediation process
on December 6, 2018
Updated on March 21, 2022
The two sides will get together in the conference room, and the mediator makes a few preliminary remarks. I customarily explain that the mediator is not part of the court; the mediator is not a judge, cannot tell anyone what to do or settle for. I say, “You have agreed to meet today to discuss the possibility of resolving your case through settlement. I am, basically, the chairperson of this meeting, who will coordinate the discussions.” And I add, “Mediators are known as neutrals. We have no bias or feeling towards one side or the other.”
Many mediators (including myself), a day or two before the mediation, will call each lawyer separately to discuss what their client expects to achieve in the mediation. Sometimes we will discuss negotiations that have already occurred. There is a mediation submission which is a written document that each side presents to the mediator several days in advance. These 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.
The lawyer for each side generally starts the mediation by making an opening statement outlining the basis of their client’s claim or defense. A party may make a settlement demand at this point, although this is not done on a regular basis. Then, on some occasions, we may have the start of negotiations with everyone present, but in most cases, particularly where the parties “cannot stand to be with each other,” we will then proceed to the caucus. [This is] a separate meeting with the client, lawyer and mediator. On most occasions the first caucus is with the plaintiff and the plaintiff’s 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, but there are many cases where other items are included in the settlement demand such as reinstatement in an employee’s suit against employer.
It is not unusual for a mediator to politely criticize a party’s demand or offer: “I am concerned that the amount I must present as your first demand could discourage the other side from continuing meaningful discussions.” Next is the second caucus, which is with the other side or sides in the case. It is a fundamental principle of mediation that the mediator may not convey to the other side a settlement demand or settlement proposal unless there is express consent given to the mediator that he or she pass may this information on. It is not unusual for the various meetings and caucuses to take a considerable period of time and go into the late evening.
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 in any context. 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?” And the court is not advised what occurred during the course of mediation. The court may only be advised that mediation has occurred and the case is either settled or not settled.
It is important that when a settlement is reached that it be reduced to writing to make it binding. A party may agree orally to the settlement, but after discussing it with a spouse or business partner the next day, he or she is faced with 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.
Some cases do not settle at the first mediation and, often, it is 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. 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.”
Mediators use many approaches to convince parties to settle. Cost and risk of litigation or an unfavorable court ruling or jury verdict is a major factor. The expenses of litigation such as depositions, court motions, trials, expert witnesses and appeals are important to consider. In my judgment, closure is the paramount consideration. Lawsuits are not happy items to live with. The parties are involved emotionally, inconvenienced in their daily lives and businesses, worrying about depositions, chasing down records and other procedures continue. Closure brings all this to an end. The dispute is over—on with your lives.
If you’re in a dispute that may need to be resolved legally, reach out to an experienced, reputable mediator today. For more information on alternative dispute resolution (ADR), arbitrations and settlement agreements, see our overviews of family law, divorce, and mediation and collaborative law.