Mediation is a process in which an impartial third party, the mediator, helps disputing parties work out a problem. The mediator meets with both parties and allows each the opportunity to present their issues. The mediator then assists the parties in working through their issues to find a settlement for their dispute.

What Types of Cases Can Be Mediated?

Virtually any civil dispute is appropriate for mediation, including:

• Business and Contract Disputes
• Partnership / Shareholder Disputes
• Construction and Real Estate Disputes
• Employment Disputes
• Insurance Claims
• Personal Injury and Death Claims
• Collection Claims
• Will Contests

What Are the Primary Benefits of Mediation?

Affordability Mediation typically costs considerably less than litigation. The average length of time it takes for a case to get to trial is 2 years—with the parties to the lawsuit continuing to incur legal fees all along the way. In contrast, a mediation session typically lasts a half or a full day, depending on the nature of the dispute.

Effectiveness Mediation statistically settles over 85% of initiated disputes.

Flexibility In contrast to a trial that is oftentimes repeatedly postponed for a myriad of reasons, the mediation date is agreed upon by the parties in advance and (subject to the mediator’s availability) will go forward on that day. This enables the parties to plan on resolving their dispute when it’s convenient for them.

Control Mediation allows the interested parties to take their matter out of the hands of a jury that has no background knowledge of their dispute, thereby maintaining more control over the outcome. In short, the mediation process lacks the risk associated with a potentially surprising conclusion of a trial.

Confidentiality Information disclosed during mediation may not be divulged as evidence in any trial or judicial proceeding. Thus, the parties can be assured that, should a mutually agreeable settlement not be reached during mediation, the parties’ respective positions will not have been compromised by participating in the mediation process.

How Exactly Does One Get to Mediation?

There are several ways by which two or more parties get to mediation:

• In the case where a suit has not yet been filed and the disputing parties are not represented by counsel, one party may simply recommend mediation to the other party(ies).
• In some instances, one party may believe a dispute could be resolved in mediation but is hesitant to approach the other party(ies) due to hostile feelings or some other reason. In this instance, the mediator may contact the parties involved in the dispute and discuss the possibility of scheduling a mediation to resolve the issues.
• If suit has been filed, the parties may direct their attorneys to schedule mediation.

What Happens At the Mediation?

Introduction The mediator first explains how the mediation process will be structured, the ground rules of the mediation and his or her role as mediator. He or she will answer any questions a party may have at that time.

Opening Remarks By the Parties Typically, the party bringing the claim will present his or her view of the dispute first. This presentation is informal and documents may be exchanged. The other party(ies) then respond in kind. Each party is free to respond until they feel that their views have been fully presented.

Negotiations The parties then break out into separate meeting rooms and, with the mediator as facilitator, begin negotiations. The mediator will meet privately with each party until settlement is reached or, alternatively, the mediator determines that settlement will not be possible at that time.

Resolution Once settlement is reached, the terms of the settlement agreement are reduced to writing in a simple document which becomes binding on all parties upon execution.

What Types of Things Should I Consider and/or Do to Best Prepare for Mediation?

The following a list of things you should consider and/or do before entering mediation:

• When To Mediate There is no steadfast rule for when a case should be mediated, but deciding whether to mediate early or later in the litigation process can make a big difference in ensuring the highest probability of settlement. Mediating a case too early in the litigation process can be counterproductive to the settlement process. But likewise, if held too late in the process the mediation window may close. For instance, this can occur when one or both of the parties have incurred such substantial expense during litigation the possibility of reaching a settlement has been severely hindered.
• Issues To Be Resolved—Or No Deal On a sheet of paper, rank order all issues according to their true importance to your side. What issues have to be resolved before settlement can be reached?
• The Cost of No Agreement What are the estimated expenses that each party can count on incurring if they do not reach an agreement (attorneys fees, litigation expenses, time away from work, lost business, delay, disruption, etc.)?
• Real Consideration for Both Sides’ Legal Strengths & Weaknesses Make a list of your side’s legal strengths (law, witnesses, evidence, procedure). Now do the same for both sides’ legal weaknesses. Do the facts and law really support the value you have given the case? (Keep in mind the true value and the desired value are often not one and the same.) Now make a list of the opposing side’s legal strengths and weaknesses and similarly evaluate them.
• Potential Barriers to Negotiation Apart from having incompatible goals or outcomes, are there any strong negative feelings that are driving the parties apart, thereby making agreement more difficult? In other words, what must be aired out before the parties can decide on an agreement / plan for the future?
• Prior Settlement Negotiations If the parties have entered into settlement negotiations in the past and failed, why did they not succeed? What is your expectation of the other side’s opening demand / initial counteroffer to your opening demand?
• Setting a Target Settlement—Prepare to Be Flexible Using your issue matrix from Tip #1 and keeping in mind your own objectives, where do you realistically expect to achieve a deal with the other side? What outcomes / packages would you be comfortable with? At what point would you generally be satisfied? Consider your own trade-offs and throwaways and even more importantly, keep in mind that newly discovered facts at the mediation will probably require you to re-think your position.
• Setting Your Opening Bid What is your opening bid going to be? Why is it reasonable? What are the logical rationales that support it? Be prepared to explain your opening bid to the other side—back your number or your demand up and don’t inflate it to the point where it becomes self-defeating because it is too unrealistic in the eyes of the other negotiator.
• Be Prepared To Listen Really listening not only to the mediator but to the opposing party during the opening session is critical to maximizing the chances of settlement. After listening to the other side’s opening statement, what do you understand to be their tangible and intangible goals and how do they compare to what you initially thought up to this point? What’s really important to them? What needs of theirs must be met before they can reach a settlement with you? The answers to these questions should drive the negotiations.
• Bring Someone With Adequate Authority Let me repeat. Bring someone with adequate authority. However, only bring only those people necessary for an adequate presentation. Too many chiefs are counterproductive to obtain a resolution.
• Pre-Mediation Disclosures Before the mediation occurs, the mediator oftentimes requests that a pre-mediation information sheet be filled out by the parties so as to give the mediator the necessary background information in advance. This sheet typically requests contact information, facts giving rise to the dispute, issues to be resolved at the mediation, information regarding former settlement attempts, etc. All information is considered confidential and will not be given to the opposing party(ies) without consent.

What Factors Should Be Considered in Choosing a Mediator?

Once the parties have agreed in principle to the mediation process, they must select a mediator. Questions to ask in the selection process include:

Reputation Does the mediator have a reputation for being neutral, having the utmost integrity and having excellent inter-personal skills?

Experience How many mediations has the mediator conducted? What percentage of the mediations conducted by this mediator have settled?

Availability How soon can a date be set by the mediator?