My case is set for mediation – what does that mean? In today’s day and age, it has become the norm for judges to require parties to a lawsuit to engage in mediation. However, many people do not understand the process of mediation and/or what the so called “mediation” will require of themselves.
To put it simply, mediation is an informal process of alternative dispute resolution wherein the goal is to attempt to resolve or settle matters between people or parties using the help of a neutral third party called a mediator. Because a majority of lawsuits no longer go to trial, mediation has become one of the regular manners in which a matter gets resolved. Additionally, judges will more often than not require that mediation take place before a certain date during the litigation process. Not only do many Courts require that mediation take place, but also, Courts want to know the status of the mediation – what happened, who was there, and where did things leave off between the parties. Accordingly, if you are involved in a lawsuit, you will more likely than not be required to mediate at some point in time.
Now that you understand the basics of mediation, you may ask next, who is at mediation? First, all parties and their respective attorneys as well as the mediator will be present. In addition, courts have now required that the party who is responsible for making any type of payment have an individual present at the mediation who has the authority to say yes or no to a certain settlement amount.
For example, common language currently found in scheduling orders will read as follows:
“The following persons shall be furnished with reasonable written notice of mediation and shall be required to appear at mediation sessions: (1) each party or the party’s representative having full decision-making discretion to examine and resolve issues; (2) each party’s counsel of record; and (3) a representative of the insurance carrier for any insured party, and said representative shall have full, unqualified decision-making discretion to examine and resolve issues and make decisions, including settlement decisions for full policy limits, without having to contact anyone for any type of authority.”
Accordingly, it is important that all of these individuals are present at the mediation in order for it to be a productive step towards accomplishing resolution of a matter. Now that you know what mediation is and who is there – your next question may be, what happens and what do I as a party have to do?
The manner in which mediation begins varies not only as a result of who the mediator is, but also it may depend on the nature of the lawsuit. For example, some mediators require “opening statements” wherein each attorney will present their theory of the case. Many times, videos are used to illustrate the theory of the case. Other times, counsel for the parties simply state a few words as to where the matter stands and if the parties have engaged in any settlement discussions to date. Thereafter, the various parties will separate to different rooms or areas and the mediator will go back and forth between each wherein settlement negotiations will take place. It is the mediator’s goal to present an objective look at each side’s evaluation of the case in an to attempt to reach a mutual agreement between the parties on the value of a case.
In sum, that is the basic level of understanding of the mediation process – although it may seem relatively straightforward, there is a talent to mediation and skills that both attorneys and mediators must hone in to achieve successful results.
Today's blog: Have you ever wondered what a 'mediation' entails? Erica tells us about that on the blog today and what you can expect going into one with your attorney.