If you are a party in a lawsuit, your case will almost always end up in mediation. But, what is mediation?
Mediation is a form of alternative dispute resolution. It is a settlement conference held between the parties and moderated by a professional mediator. The mediator has no interest in the case and is considered a neutral participant. The purpose of the mediation is to explore all settlement options and attempt to resolve the conflict and end the litigation.
Mediation should not be confused with arbitration which is an entirely different method of alternative dispute resolution. Whereas arbitration involves the taking of evidence and a decision by an arbitrator, there is no evidence taken in mediation nor is any decision rendered by anyone. Instead, the parties have control over the outcome in a mediation.
Mediations are an extremely effective method of resolving disputes. Our experience at Tucker & Ludin is that the vast majority of cases settle at mediation. In fact, mediations are so effective that most judges will not allow a case to proceed to trial unless the parties have participated in mediation.
Your mediation will be an informal hearing typically held at a lawyer or mediator’s office away from the courthouse. A mediation generally lasts about 4 hours though they may continue for a full day or longer. It is attended by the parties, and their attorneys, as well as the mediator. There will also be an insurance adjuster, if your claim involves insurance. Someone with full authority to settle must attend for each party.
Through the use of the mediation process, you should be able to get the best possible offer to settle your case in order to resolve your dispute without leaving the decision in the hands of a judge or jury. Once you receive that BEST offer, you can decide whether to settle your case or proceed. If you agree to settle, all the parties sign a formal enforceable settlement agreement and your lawsuit is over. If you decide not to settle, the mediation is declared an impasse and you can proceed with your case. No one will force you to settle or not settle. The decision to accept an offer is yours and yours alone. However, your attorney is present to answer any questions you may have and to offer an opinion on the settlement offer.
What happens at the Mediation?
When you arrive at your mediation you and your attorney will generally enter a large conference room where all participants are present. The mediator will make opening remarks explaining the process and advising that everything said in the mediation will be considered confidential. This means that no statements made at the mediation can be repeated to anyone who is not participating, nor can these statements be used at trial.
After these introductory remarks, the parties’ attorneys will be asked to make statements summarizing their claims and defenses. The parties will also be offered an opportunity to speak. However, we may ask you not to speak during the opening presentations so that we can control the flow of information to the opposing party. While everything said at mediation is considered confidential, parties will still aim to keep their strategies confidential. Therefore, we may decide to relay information to the opposing party through the mediator later in the process.
After the opening remarks, the mediator generally moves the parties to separate rooms so that they can speak privately outside of the presence of the opposing party. At that time, you and your attorney will have the opportunity to discuss the opening statements and their significance to the case.
After the parties are separated, the mediator will move from one room to the other discussing his/her observations regarding the strengths and weaknesses of each case. Eventually, the discussion will focus on settlement offers and demands. While in your room it may seem that the mediator is encouraging you to reduce your expectations and lower your demand, be assured that while in the other room, the mediator is doing the exact opposite and working to encourage them to increase their offer.
Throughout the mediation process you will have plenty of opportunities to speak privately with your attorney regarding the settlement proposals. Your attorney will make recommendations about how to best negotiate your case and whether you should consider accepting offers to settle. However, this is your mediation and you make the ultimate decisions as to what offers and demands you make and whether the final offer is acceptable. Though you will generally not be under pressure to make a quick decision, you will be encouraged to make a decision at the mediation. If you do not make a decision as to whether to settle at your mediation, it is possible that any offers will be withdrawn. If you do settle, an agreement will be drafted and all parties will be asked to sign the agreement before leaving.
What should you do to prepare for your mediation?
Since you will not be asked to testify you need not do much to prepare except to generally familiarize yourself with the facts of your case. Unless your case is particularly complex, do not invest a great deal of time into this. Your attorneys will review the facts of your case before the mediation and will contact you if they have any questions. Generally, attorneys like to speak to their clients a day or more in advance of the mediation to prepare for what will occur. If they feel it is necessary, they will arrange a phone conference in order to do that.
When you attend, you should dress comfortably. You do not need to wear particularly dressy or flashy clothes though it should be clean and make a nice appearance. Men do not need to wear a suit or tie. Generally, clients wear business casual attire.
The most important advice we can offer is to be well rested and relaxed when you arrive at mediation. Please do not come with a preconceived number in your mind below which you would not consider settling. Instead, come with an open mind and be prepared to listen carefully to the opposing parties’ opening statement. This will often shed light on what they would tell the judge or jury if the case proceeds to trial.
The attorneys at Tucker & Ludin have represented parties in hundreds of mediations and know how to negotiate the best result possible. If you are involved in an accident, call Eric E. Ludin, Esq. for a free consultation.