Mediation FAQs

Q. What is "mediation"?

A. At some point in the litigation process, usually after most of the depositions and investigation has been completed, it might become feasible to pursue mediation.

Mediation is a voluntary process by which the lawyers and their clients come together in person and through the use of a trained mediator to attempt to settle the case. A mediator is not a judge - he is a lawyer who has special training in helping people settle their cases. He does not DECIDE the case or tell a litigant what amount of money he or she should collect. He is only at the mediation to assist the parties in coming to an agreement.

The most important thing to know about mediation is that the decision to settle the case or not rests entirely in your hands. Just because there is mediation does not mean you MUST settle the case of the day of the mediation. It is entirely up to you. If the defendants offer you an amount of money that is satisfactory to you - you should accept it and settle the case. If not, you should reject their offer and go to trial. We will be at your side throughout the mediation.

The process usually works like this: the mediation will usually occur at our office. We will meet with you briefly before the mediation, then we will go to a conference room where we will meet with the mediator and the lawyers on the other side of the case, and, in most cases, a representative of the party or parties who have been sued. The mediator will then explain to everyone how the mediation will be conducted. We may make opening remarks explaining our case to the mediator, or we may have already submitted a "position paper" to him explaining our case. The defendants will then make their opening remarks. Then we will split up. We will go to another conference room.

The mediator will then meet with us and explore the case a little further. Everything we tell him is confidential unless we tell him it is acceptable to reveal certain information to the other side. He will discuss the case with us and get us to make an opening offer. Then he leaves and meets with the other side to do the same.

He will go back and forth between the two conference rooms until the case is settled or until the parties tell him that the case cannot be settled. We will always be right there with you when the mediator is present or when the other lawyers or other parties are present. This process usually takes all day, so when you come, be prepared for a lot of "down time." Bring some books or magazines to read. Dress as if you were going to court.

Q. Is mediation a good idea for my case?

A. Usually. Mediations will generally help facilitate the resolution of a case, and most parties in a lawsuit or potential lawsuit are better off having their case resolved outside of the courtroom. At mediation the plaintiff has some control over the decision-making. At the end of the day, the plaintiff can decide whether or not to accept the amount of money being offered by the defendant or insurance company. At a trial or arbitration, a stranger will decide the amount of money that will be awarded to the plaintiff and it will be almost entirely out of the control of the plaintiff.

On the other hand, there are some plaintiffs who want or need their case to go trial and there are some cases that are not "ripe" for mediation at a particular point in the litigation, particularly early in the case. The decision of when and whether to mediate must be made on a case-by-case basis.

Q. How are mediators chosen?

A. Generally, the lawyers in a case get together and attempt to select a mediator that they are all comfortable with. Usually, this will be someone who is very knowledgeable on the subject matter of the case, skilled at mediations and considered relatively unbiased. Mediators can be either retired judges or practicing or retired attorneys.

Q. When can a case go to mediation?

A. Anytime. A case can be mediated from the first day that all of the parties become aware of the potential claim up until the trial, after the trial, or even when the case is on appeal.

Q. How much does a mediation cost and who pays for it?

A. The cost of mediation varies widely depending upon the billing practices of a particular mediator and the length of the mediation. Mediations can cost anywhere from several hundred dollars to $10,000 or more if the mediation lasts several days. Usually, the parties have an agreement as to who pays the mediator. Sometimes the parties split the cost of the mediation, but most times the defendant pays the cost of the mediation if the mediation is successful.

Q. Does the mediator receive written information in advance of the mediation?

A. Usually, but not always. The usual practice is for each party to prepare a mediation position paper summarizing the case. Depending on the complexity of the case, the position paper can be a few pages long or hundreds of pages. Further, important documents and evidence will be attached to the position paper. Exchanging position papers is not a requirement and some attorneys will prepare a position paper but will provide it confidentially to the mediator and not to the attorney for the other side.

Q. What happens at mediation?

A. Mediations can vary a great deal depending upon the style of the mediator, attorneys, and the nature of the case. Most mediations begin with a "joint session" where all of the parties, attorneys, and insurance adjusters meet in one conference room with the mediator.

The mediator describes the process that will be followed and then each side has an opportunity to present their point of view of the case to the other side and the mediator. The parties themselves can speak to the other side if they choose to.

If there is a joint session, when it is finished the parties and their attorneys go to separate rooms and the mediator shuffles back and forth from the rooms discussing important issues in the case and conveying settlement demands and offers.

Q. How long does a mediation last?

A. Mediations usually last all day, often for several days. Some mediations may end very quickly if both sides can come to an agreement quickly or recognize that they are too far apart in their expectations for the mediation to be successful. Not infrequently, one or more future days of mediation will have to be scheduled before the case can settle.

Q. What happens at the end of mediation?

A. If the case settles in mediation, a written settlement agreement is created at the end and signed by the parties. It becomes a legally-binding enforceable contract. The agreement will list both monetary and non-monetary terms. If the case does not settle, the parties will either decide to move on with the litigation or maybe consider another mediation later.

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