Here at Fry Law, the issue of mediation has come up quite a bit and we have noticed that litigants or potential litigants are a bit confused when it comes to mediation.
To understand mediation, a brief discussion on litigation will help.
Litigation is when parties have a dispute that requires Court intervention. For example, breaches of contract, personal injury claims, etc. These parties have typically tried to resolve the dispute on their own but have been unsuccessful. It is quite common. Litigation is often required when the parties simply don’t have a shared understanding of their chances of success.
Mediation is available in almost all situations and is designed to bring in a neutral third party to attempt to get everyone on, or as close to as possible, the same page.
The process is as follows: First, the parties have to agree on mediation. Once they do that, they will agree on a mediator. There are hundreds of attorneys who only do mediations so this step is usually pretty easy. Next, you engage the mediator and pay the deposit (usually split between the parties). After that, the parties agree on a date and time. The mediator will then ask that the parties submit mediation briefs to give him/her a background on the case and an idea of what everyone is expecting. They may also ask to do a pre-mediation phone call with the attorneys only to get a feel for what is holding up settlement. After that, the mediation session.
The mediation session is typically several hours, sometimes all day. It usually starts with the parties convening at an office with multiple private offices. Each party is put in a separate room. In some cases, the mediator will have all parties come into one conference room for a little introduction of them and how they like to work. The parties then go to their respective rooms. The mediator will typically go to the plaintiff’s room (the person suing) and get an opening offer and take it to the other side. After that, a series of mediator ping-pong will occur where the mediator bounces back and forth with information and numbers.
Caution: The mediator will likely tell you how bad your case is or how good the other side’s case is. This is normal and perfectly necessary. Knowing the strengths and weaknesses of your case is important to valuing your case. If the other side has some very helpful facts and argument, your case value goes down. For example, let’s say the other side has a witness who will say the light was green and not red. Though this is disputed, it is possible that the jury will believe their witness and not yours. This means you may want to take less to avoid the risk of getting nothing at trial.
Why is mediation important? Litigation is unpredictable. Litigation is also quite expensive. Not to mention, litigation is not very fun for the people involved. Settlement should always be high up on any litigants’ priorities.
Mediation is a great way for the parties to see the case as the other side sees it. This is important because a jury will ultimately hear both sides and make a decision on your case. Mediation gives you the opportunity to see it from the other side and decide if you want to completely eliminate that risk and agree to settle your case.
