What is mediation? If your attorney suggests a mediation session between you and your opponent, you’ll likely feel some apprehension. Most people have only a vague idea of the purpose and process of mediation, and may wish to proceed directly to trial. However, it is estimated that 90-95% of civil cases settle before going to trial, and many settlement agreements are reached during mediation. To maximize your chances of settling, read below for the five things you need to know before your mediation session.
Mediation is a cheaper, faster, more satisfactory alternative to litigation
As discussed in our litigation overview post, litigation is a slow process. Lawsuits often stretch on for a year or more before reaching a resolution. The process is expensive as well as time-consuming: collecting evidence, deposing witnesses, and obtaining experts are costly endeavors.
Mediation, on the other hand, offers both parties the opportunity to reach an agreement within a matter of hours rather than months or years. Although mediation sessions can cost a few hundred dollars per hour, this one-time cost is significantly cheaper than pursuing a lawsuit for months on end.
Another benefit of mediation is that it facilitates understanding between the parties. Sometimes each party’s true motivations can become obscured by a flurry of pleadings, motions, and briefs. By setting the legal maneuvers and courtroom antics aside for a few hours, both sides have the chance to explain their feelings, exchange condolences or apologies, and compromise on a mutually agreeable solution.
You can go to mediation without facing the opposing party
Your mediation will take place in a joint session, a private caucus, or a combination of both. In a joint session, all parties and their attorneys will be in the same room, with the mediator presiding over the negotiations in a conference-style method. In a private caucus, the parties each remain in separate rooms with their attorneys. The mediator in a private caucus will alternate between the rooms to speak privately with each party, relay offers and counteroffers, and suggest compromises.
Some mediation sessions take place solely in private caucus, with the parties never meeting face-to-face. This is often the case for more sensitive situations, such as cases involving abuse, sexual assault, or wrongful death. More amiable mediations may be a mixture of joint session and private caucus, allowing the parties to confer privately with their attorneys in between face-to-face meetings.
If you have a preference between the two types of sessions, be sure to express this to your attorney well in advance of the mediation date. Your attorney may recommend one method above the other for strategic reasons, but a good attorney will take their client’s personal preferences into account when setting up a mediation.
Most mediations follow the same steps
In a joint session, the mediator will usually begin by explaining the rules for the session. The parties will then take turns explaining their side of the case, or their “statement of the issue”, including what they hope to accomplish through mediation. The attorney may deliver his or her client’s statement of the issue, but the mediator will generally request that the client contribute a few statements in their own words.
The mediator will then begin questioning each party in a non-aggressive, open-ended manner. The mediator’s questions will be designed to get each party to consider their opponent’s perspective, explain their own views, and discover any underlying sources of conflict. The mediator may rephrase each party’s statements to help them understand each other, and may suggest courses of resolution for the parties to debate.
In a private caucus, the mediator will conduct the above steps with each party individually, alternating between the rooms to obtain statements and to question them further. As the negotiations proceed, the mediator may begin to draft a settlement agreement for the parties to examine.
If the parties come to a consensus on each term of the agreement, the mediator will produce a final copy for the parties to sign. It is important to note that a signed settlement agreement is binding. The signed agreement will usually release defendants from any further responsibility for the plaintiff’s damages. Click here to see an example settlement agreement from the Federal Alternative Dispute Resolution’s website.
Information exchanged in mediation is confidential
Before the mediation begins, both parties sign a confidentiality agreement. This agreement states that everything discussed or conceded during mediation will be kept confidential. The parties cannot use or refer to admissions, denials, offers, or statements from the mediation session in subsequent litigation proceedings.
For example, assume that the defendant in a car accident case makes a settlement offer during mediation, but the offer is rejected and the case proceeds to trial. The plaintiff cannot bring up the settlement offer at trial in order to imply the defendant’s liability.
The confidentiality requirement allows both parties to communicate more openly, leaving them free to express their true motivations and desired outcomes. This speeds the resolution process along considerably. However, it does not mean that each party should say exactly what is on their mind, particularly if they are angry. Loud, abusive, or aggressive language is not tolerated in any mediation.
You will have to compromise, but know when to hold firm
Mediation involves a delicate balance between the client’s interests and the attorney’s strategy. A good attorney will not pressure you into agreeing to a resolution that makes you uncomfortable. Likewise, if your attorney warns you that a given offer has significant disadvantages, you should heed their warning and consider the offer carefully.
Mediation is all about compromise. If the parties reach a mutual agreement, it’s highly unlikely that either party will have everything exactly the way that they wanted. It’s important to be realistic about your expectations and to view your offers from the other party’s perspective. Although they may have wronged or injured you, it is not realistic to expect them to agree to every element of your first offer.
Before your mediation, your attorney will likely inquire as to the minimum amount you’d be willing to settle for, and whether you’d consider going lower in exchange for other terms. It’s important to remain flexible during the mediation, but it also helps to go into the session with an idea of what you will and will not compromise on. Be sure your attorney is on the same page.
Finally, don’t feel pressured to reach an agreement. Mediations are often all-day affairs. It’s easy to get so physically and emotionally worn down that you’ll agree to anything just to reach a solution. That’s where your mediation attorney comes in: if the opposing side refuses to reach a reasonable agreement, your attorney may recommend ending the mediation and proceeding with litigation.
Additional tips:
- Mediations often last several hours, and can stretch on all day. Eat beforehand, and pack an energy bar and water.
- Dress nicely, but as comfortably as possible.
- Go over any questions with your attorney before the mediation.
- If any questions or concerns arise during a joint session, feel free to request a private conversation with your attorney.
- If an agreement is reached, request your own copy of the signed agreement.
- Make sure you understand all the terms of an agreement before signing. Ask for clarification on any term that is unclear.
