Things Clients Should Know Before Mediation

Mediation is usually the only time all the parties are together for the sole purpose of settling the case. Settlement is the only way to avoid a very unpredictable jury/judge trial. With a jury/judge, there is no guarantee of an outcome that is favorable to you in any way. Attorneys can give many examples of unanticipated if not shocking jury verdicts and rulings. A settlement is the only way to avoid trial. Even if you receive a favorable trial outcome, the other side is likely to appeal and that could involve you in the litigation process for years.

1. Everyone wants to work things out on their own. This is your opportunity to get it behind you.

2. The mediator is not a judge or arbitrator who makes a binding decision. You, the Client, are the only one who can agree to a binding mediation agreement.

3. The only way your case is settled at mediation is if you voluntarily agree.

4. How it works:

A. Usually, you, your attorney, the mediator and the other side and their attorney meet for a brief Opening Session.

B. At the Opening Session the mediator and attorneys usually do all of the speaking. This is probably the only time you will hear the opposing attorney speaking directly to you about the strengths of their case and the weaknesses of yours. Listen, because there are two sides to every story and you should be well educated about both sides of your case so you can decide if you will settle.

C. After the brief Opening Session, usually the mediator separates the two parties, together with their respective attorneys, into two separate private rooms for each party and his/her attorney. This is when you can tell the mediator all you want him/her to hear.

D. Your attorney stays with you throughout all parts of the mediation.

E. The mediator moves from one party's room to the other and (without providing legal advice) discusses both the strengths and weaknesses raised during the mediation in an attempt to help the parties reach a mutual settlement agreement.

5. In order to promote the free flow of ideas, communications during all of the mediation are confidential except where disclosure is required or permitted by law. A mediation participant shall not disclose a mediation communication to a person other than another mediation participant or a participant's attorney. Of course, if the parties sign a written mediation agreement, that written mediation agreement is not confidential unless the parties agree otherwise. There are a few other rare exceptions to mediation confidentiality relating to the planning of a crime, child or elderly abuse, etc.

6. Mediation works. Most mediations end with the parties entering into a signed mediation agreement so everyone can get it behind them. You can get this behind you.