Mediation is a confidential process where a neutral and impartial third person (the mediator) works to help parties to a dispute or a lawsuit negotiate and make decisions together about the important issues that need to be resolved. Mediators have special training to help people compromise their differences, reach agreements and settle cases.
Mediation is Private
There are special rules protecting settlement negotiations, offers and attempts to settle disputes. Compromise negotiations and offers are not admissible in court. This encourages people to negotiate and make settlement offers without fear that their offers will be used against them in the event that negotiations are unsuccessful. Mediation falls under the rules about settlement negotiation, which means that anything and everything that is said in mediation is private. Nothing either party says in mediation may be used against that person in court. Neither side may ask the mediator to appear in court to discuss what happened in mediation.
The Mediation Process
Generally, each side will be in separate rooms, and the mediator will move between rooms during the mediation process to convey settlement offers and creative ideas for settlement. Mediation is less formal than a court hearing or trial. The mediator is not a judge and will not make decisions for you or tell you what you must do. The mediator does not determine facts, give legal advice, or decide the outcome of your case. Instead, the mediator helps you understand each other’s concerns, identify options, and find solutions. The goal of mediation is to help you reach a voluntary agreement with solutions that work for your situation.
Mediation Can Be Beneficial in Every Case
Mediation is a safe place because it is private and confidential. The ideal outcome of mediation is complete resolution and settlement of all claims between the participants. However, even when that does not happen, the outcome may still be positive. Sometimes partial agreements can be reached at mediation. Even if no agreements are reached, often more information is learned at mediation about the other side's theories and motives that can result in either settlement after mediation or a successful trial. Mediation can be a part of a shift of the risk of trial -- by making aggressive settlement offers, you can make an opponent who acts as if they have nothing to lose at trial feel like they have something to lose -- if they leave your good offer on the table at mediation. Parties to a lawsuit are sometimes able to agree to things that a judge or jury could not order if a case goes to trial. Sometimes mediation offers may include proposals that are outside of the realm of what a judge or jury could do in the case, and those proposals can induce or incentive settlement.
How We Approach Mediation
Mediation fits into our process for handling cases. In most cases, mediation is scheduled after discovery is complete and after written settlement offers are exchanged. There are many quality mediators. With few exceptions, we generally agree to use the mediator that the other side is willing to use, as we want the other side to feel good about going to mediation and to have ownership in any settlement that is reached. Although mediation is very different from trial, we approach mediation in a similar way to trial. Like trial judges, mediators only know what they're told by each side. We work to provide the mediator with important information and evidence about the case in advance before the mediation session. If we have already made a written settlement offer to the other side, we share the written settlement offer with the mediator before the mediation session. Many attorneys do not take the time to send the mediator any information. We have an advantage in the mediation session because the mediator already has important information from us about our position and why our position is reasonable. The way we approach mediation impacts how mediation works. Each side is in different rooms. In our mediations, the mediator spends a significantly greater amount of time in the other room than the mediator spends in our room. This is because we have already shaped the mediation by sending advance information, so the mediator spends most of the time in the other room working on the other side for settlement. Our approach to mediation often facilitates successful mediation outcomes for our clients.
Who Should Attend Mediation?
Each litigant, or party to the dispute, should attend mediation. Many mediations take place virtually, by Zoom or on other video platforms. If the mediation is not in-person, every participant should take steps to ensure that they have a stable internet connect in a place with no distractions where they can hear and discuss confidential matters.
In some domestic matters, it Is common for one or both sides to ask their new significant other to attend mediation. Sometimes this can be upsetting to former spouses or co-parents. However, in some circumstances it can be beneficial to have new partners or spouses attend mediation, if everyone consents. If a new partner has influence, they can help the other party in a support capacity and take ownership of any agreement reached. This can decrease the likelihood of the other side trying to back out of an agreement after mediation. Of course, if a new partner is disruptive or obstructive to the negotiation process, they should not be permitted to participate. There are various factors for deciding whether to oppose or agree to a new significant other attending a session, including the recency of separation between the litigants, any history of domestic violence or substance abuse by the opposing party or their new partner, and the current relationship status of each party to the lawsuit.