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August 10th, 2023
Considering how few lawsuits make it to the point of trial (by most estimates, less than 10%), it is a good idea for anyone involved in litigation to understand how most cases are resolved. One common method is mediation. What does the process of mediation entail, and what can you expect if you find yourself involved in this dispute resolution mechanism?
Mediation is a process by which opposing parties in a lawsuit meet with a neutral third party who attempts to help them negotiate a resolution. Mediation is often done by agreement of the parties but can sometimes be ordered by a court. In some instances a court can even supervise a mediation.
One of the advantages of mediation is that it is a flexible system structured largely by agreement, in which parties can tailor the process to their needs in an individual case. For example, the parties can agree to split the costs of mediation (which are lower than resolving a case in court) or have one side or the other pay the costs. Of course, like any form of negotiation before trial, mediation also allows the parties to exercise control over the outcome of their cases rather than leaving the final decision to a judge or jury.
Mediation procedure can involve varying degrees of formality, but it is less structured and formal than court proceedings. After the mediator makes an introduction, some mediations begin with each party offering an opening statement summarizing his or her position, but many people forego opening statements to avoid starting off in an aggressively adversarial tone. The use of opening statements is up to the parties themselves, often with input from the mediator.
After introductions, the parties normally separate into different rooms, and the mediator circulates among the rooms conveying the parties’ negotiating positions to each other. However, a good mediator does much more than just pass along settlement offers. Parties can ask a mediator’s opinion on their own positions and those of opposing parties, express their goals and concerns, and can request that the mediator keep their discussions private to encourage open communication.
Another valuable feature of mediation is that the parties can hear each other’s positions from a neutral mediator, which can sometimes be more persuasive and sound less biased to an adversary rooted in his or her own position. Additionally, as with most out-of-court settlements, parties can agree on settlement conditions that suit their situation, including some that a judge or jury may not be authorized to award in a trial. Such conditions can be as specific as an agreement to pay money on a certain schedule or make an improvement on a piece of real estate, or as general and simple as an apology for conduct that led to a lawsuit in the first place.
As with any effort to resolve a dispute, it is important to go into mediation with an open mind and a commitment to make an honest, good faith effort to reach an agreement. It is also important to keep in mind what procedures and solutions are available as alternatives in court, and an experienced lawyer can help balance these alternatives and hopefully arrive at an appropriate resolution.
