WHAT IS MEDIATION AND HOW DOES IT WORK
More and more cases are being sent to mediation. It has proven to be an invaluable tool for resolving many claims without the need for trial. We are big fans of mediation and always recommend that our clients participate in the process. Here are our observations about what mediation is and, more importantly, what it is not.
What is mediation? – Mediation involves a neutral third-party who assists the parties in reaching a resolution of claims. Many times, mediators are retired judges who have learned the art of mediation through years on the bench. Other times, mediators may be attorneys who have years of experience and who have gone through training on mediation theory and procedures.
What mediation is not? – Mediation is not a trial and the mediator does not determine who is at fault or how much money should be paid in settlement. Mediation should be viewed more as a collaborative process in which the parties acknowledge the strengths and weaknesses in their case in order to make informed decisions concerning settlement.
The mediation process begins as soon as the parties agree to mediate their dispute. In our practice, once our client agrees to mediation, we begin the process by thoroughly reviewing every aspect of the case and the dispute. Depending on the stage of the case, we may need to gather more documents or have an expert review our damage calculations. Our clients are completely involved in that process. We have regular meetings, whether in person, by telephone, or by Zoom. In partnership with our clients, we explore the good, bad, and ugly surrounding the case.
Mediator Selection – In the vast majority of cases, the parties try to agree upon a mediator. We look at mediators nationwide who have a proven track record of getting cases settled. We research the background of the proposed mediators and try to find those who have experience in the type of case we are trying to settle. For example, in our franchise cases, we try to find mediators who have experience in complex, multi-party, commercial cases. The better the mediator, the more limited availability they will have and the higher their fees will be. However, in my experience it is well worth the wait and expense. We have been before some great mediators who have gotten cases settled where neither side thought it would happen.
Pre-Mediation Submissions – Prior to the day of mediation, the mediator will want a written submission from the parties. These submissions will set out the nature of the case, the strengths and weaknesses of the claims, any prior negotiations between the parties, and any other information the parties may want to bring to the attention of the mediator. In the past, we have always chosen to send this only to the mediator and not share it with the other side. However, Fortman Law just had a case settle in mediation in which the mediator suggested the attorneys share their submissions with each other and also provide the submissions to their clients. It proved to be invaluable in getting the case settled. We now insist that the submissions be shared and we share the other side’s submissions with my client. During this period, we continue to have regular conferenced with our clients to discuss our progress and to allow them to share their thoughts and ideas.
Day of Mediation – On the day of mediation everyone appears, either physically or virtually, in the same room to start. The mediator will give his opening remarks and will give the parties the opportunity to share whatever they want to say. It may be the last time that the parties are in the same room. After that initial session, the sides will be split into separate rooms. The mediator will go back and forth between the rooms to gather information and evaluate the case with an eye towards getting the case resolved. It can be a long process and there are times when you sit in a room for extended periods while waiting for the mediator to return. Eventually, there will be discussions of money. The mediator may go back and forth between rooms several times passing settlement offers between the parties. The mediator may share his thoughts based on his or her experiences and may make suggestions as to how you should respond. Ultimately, there will be a time when the parties either reach a settlement or determine that the settlement will not occur. That may be after several hours. I never leave a mediation early. I will stay as long as there are fruitful discussions. If a settlement is reached, the attorneys will draft a general statement of the terms and the parties will sign. The attorneys will then spend the next several days drafting a formal agreement with all terms which the parties will sign to settle the case.
When preparing for mediation, we make the following suggestions to our clients:
Be Positive – Many times the dispute between the parties and the adversarial nature of the litigation has broken the trust between the parties. Mediation is a time to take a pause from the adversarial process and look at other alternatives. It is not a sign of weakness, it is a sign that the parties acknowledge the risk of the unknown should the case be decided by a judge or jury. We approach every mediation with the expectation that the case will settle. Even if the case does not settle, there is still a big benefit to the process. It allows us to learn more about the thinking of the other side and can raise issues which we can then address as the case moves forward.
Put Yourself in the Other Person’s Shoes – We get entrenched in our position during a case thinking we are right, and the other person is wrong. However, in most cases the other side has the same thinking. Stepping back and exploring the thought process of the other side may reveal issues that you did not consider. It also may assist you in determining the best way to respond to the other side during the mediation. It is always important to remember that if the case goes to trial, the jury will be considering both sides of the argument.
Take Emotion Out of the Equation – This may be difficult advice in cases where there has been contentious litigation or where there is a long history between the parties. However, we always advise our clients to step back and look at settlement as a business transaction. Decisions based on facts rather than emotion will always prove to be better. A jury that hears the case will not have the emotional investment you have in the case. Again, look at it like a jury would if the evidence were presented in court.
Be Willing to Be Flexible – In every case we do, the clients will ask us how much their case is worth. My response is always the same. The case is worth as much as a jury is willing to award in a verdict or how much the other side is willing to pay in settlement. There is no formula and every case is different. Mediation will allow you to get a better idea because a neutral mediator will look at the facts, the law, and the arguments of the other side and can give valuable feedback. We may go into mediation thinking a case should settle for a specific range. However, information learned during the mediation process may cause us to reevaluate that range. The better mediators are not afraid to tell the parties hard truths concerning weaknesses in their positions and will be specific as to why the mediator thinks the party should reconsider their evaluation of the case. You must be open to that discussion as it may lead you to reaching a resolution sooner rather than later.
Overall, you as the client are the one who has final say in any settlement. Our role is to advise you along the way so that you can make an informed decision based on the facts and the legal arguments. The best settlements are those in which there is compromise by both sides. The best settlements are those in which neither side is completely happy. That means that there has been compromise in the spirit of resolution. The parties have taken their last chance to control the outcome of the litigation by reaching a settlement that they may not see as ideal but brings them certainty.
While Fortman Law is based in Florissant, Missouri, we handle matters in mediation nationwide. We handle these matters in franchise cases, personal injury, medical malpractice, product liability, complex business matters, and any other area of law in which a dispute may arise. If you have any questions, please contact us for a free initial consultation.
Law Office of Jonathan E. Fortman, LLC