August 27th, 2019
What Happens During a Mediation?
As your case progresses, it is likely that your lawyer will contact you to schedule a mediation. A mediation is an opportunity for all of the parties to get together and have a discussion that is facilitated by a neutral party – the mediator. It will be an attempt to see if the case can be resolved through settlement rather than proceeding to trial. It is also a good chance for all of the parties to take stock of the current status of the case, weigh the pros and cons of each side, and determine value of the case before undertaking additional case expenses such as further discovery and depositions and trial preparation. Your lawyer will meet or arrange a telephone call with you in advance of the mediation to explain the process, go over the position of your case and arguments, and discuss potential settlement values with you.
But what actually happens during the mediation itself? Quite honestly, a lot of sitting around! This does not mean that nothing is happening, it just means that there is a lot of discussion, evaluation, and consideration in between offers, demands, and movement on the settlement negotiations. Mediations often begin with all of the parties and their attorneys, along with the mediator, meeting briefly in the same room to introduce everyone who is participating and go over the procedure for the day. The mediator will introduce himself or herself and explain their role in the process, and sometimes a video may be presented by one of the parties which summarizes the case and highlights important evidence. Following this introductory meeting, the parties will break into their respective rooms with their attorneys. The mediator will then come in to each room and discuss the case with each party in confidence. The mediator will usually discuss the pros and cons of each side’s position in the case, and ask if there have been any previous offers or demands. Once you and your attorney have given the mediator your position on the case and where you think the settlement discussions should begin, the mediator will then go back and forth between the parties to convey offers and demands and see where there is room for agreement. This can take awhile.
While the mediator is out of the room having discussions with the other parties, this is a time for you to talk to your lawyer about your case and get a better understanding of what your attorney’s thoughts are on your case and the settlement value. You can also ask your attorney to explain more about what the mediator has discussed with you and what the other side is saying about the case. It is also a good time to just chat with your attorney generally. However, sometimes you may have all your questions answered about the mediation process and are just waiting for the mediator to return, and may be wondering what else there is to do with the time. It is perfectly fine to bring books, magazines, crossword puzzles, or any other kind of entertainment to the mediation to help pass some of the waiting time. Your attorney will not think that you are being rude if you want to sit quietly and read a book or play a game on your phone. It is also fine to step outside for a phone call or fresh air, or to talk with your spouse in the room separately if they have accompanied you. If you have work to do on your laptop or tablet, that is just fine as well. Many people feel as if their full attention must be on the mediation at all times, and while that is perfectly fine if you want to focus solely on the mediation, you should not feel like you are held captive for the whole day. Even if you get up to use the restroom or step outside for a few minutes and the mediator returns while you have left briefly, your attorney will come and find you and nothing will be decided or discussed until you return to participate.
Mediation is an important part of your lawsuit and as attorneys, we want you to feel comfortable and confident during the process. If you have questions about how the mediation will go, or what you can do during the process, just ask your attorney.