Whether you are trying to resolve a personal injury case or a family law matter, the costs of going to trial in time and expenses can be significant.  For this reason, alternative methods of reaching settlement are often used.  The most widely utilized of these is mediation. I find that the mediation process usually goes in stages that can be summarized as follows:

Stage 1: Deciding Whether and When to Mediate

While most cases benefit from the mediation process, not all do.  This can be for a variety of reasons including the amount at stake, the cost of private mediator fees, the ability of the attorneys to negotiate settlement on their own and other reasons.  Therefore, the first step is deciding whether to mediate.  From there, the question becomes when the event should take place.  Usually, it is best to obtain enough information to come up with reasonable values for potential settlement and this requires discovery including obtaining documents, propounding interrogatories and other written requests for information and taking some depositions of the parties or other key players.

Stage 2: Preparation for the Mediation

For the attorney, this requires reviewing the discovery obtained including summarizing documents and deposition testimony and preparing a brief for the mediator.  The mediation brief should be succinct but, should contain the basic arguments for the client’s position with reference to law and facts.  The facts should also reference the discovery responses and attach certain key pieces of evidence to the brief so that the mediator can easily access the information.  It is also important for the attorney and their client to discuss how the mediation process works, what may be some reasonable expectations for settlement amount ranges, and

Stage 3: Laying Out Your Basic Position as An Introduction

Usually the mediator will explain the process and their view of how to best resolve disputes at the very beginning of the process.  Some mediators prefer to do an initial “joint session” with the parties and their attorneys.  I find that more and more mediators are getting away from this practice as it tends to sometimes have the opposite effect intended (i.e. to entrench both sides in their positions by making “arguments” in front of the clients).  If a joint sessions is had, it is important to keep in mind that you are trying to state your position but, also trying not to let this inflame emotions.  It is often better to concede the “good points” of the other side but, to tactfully explain why your side’s position is correct despite those points.  This can be done in an initial session with the mediator outside the presence of the other parties, as well and this is now becoming the preferred method.

Stage 4: Negotiation

This is really the heart of the process.  It involves “separate caucuses” or meetings between the mediator and the attorneys and clients for both sides outside the presence of the other party.  Sometimes it works to have the attorneys discuss things amongst themselves outside the presence of the parties as well and then go back to explain what was discussed.  This may seem “out of the ordinary” to the client but, oftentimes attorneys need to know the legal position of the other side prior to being able to explain this to their client.  Usually, negotiations take several rounds.  The initial going is usually very slow but, by the end, the process moves more quickly.  It is important for the client to understand that in order for a settlement to be reached, there must be compromise.  Neither side will ever get everything they want.  Both sides need to feel that they received a resolution that gave some but, gained some in order for their to be an agreement.

Stage 5: Finalizing the Settlement

Unfortunately, not all mediations end in a settlement of disputes but, more often than you would think, when both sides are prepared and understand the risks and costs of proceeding further, a compromise can be reached.  At this point it is important for the attorney to explain all of the terms of the agreement to the client and obtain their consent.  I am a firm believer in doing at least a preliminary settlement agreement, in writing, prior to the parties leaving the mediation and providing my client a copy of the agreement to take with them at the end.  This reduces confusion as to terms allows the client to feel they have fully understood what the agreement entails.  Usually, a more formal agreement is later drafted with all of the more detailed terms.

Conclusion

Mediation has fast become one of the most common and effective means for parties to resolve legal disputes.  It should be encouraged in most cases and the lawyer and their client should work together before, during and after a mediation to ensure the best results.