Why does mediation work

If you are working with an insurance company who is defending the suit for you, you should at least have access to you insurance adjuster during the session. What Happens in a Mediation? There is no one set way to do this, but most sessions follow a basic structure. First, the parties, the mediator, and the attorneys will meet in a joint session. Almost always this session will involve a description of the process, an introduction of the people in the room, and signing by all present of a confidentiality agreement.

Frequently the neutral will give the parties a chance to make a brief opening statement, though not always. After the joint session, the parties and their attorneys will usually be placed in separate rooms. The mediator will spend time with each side to talk about the case ad your settlement expectations, and to get authority to convey offers or demands to the other side.

The private sessions are an opportunity for the parties to discuss the case without the other side hearing. If you tell the neutral that you want something you have said not to be shared with the other side, they will honor that request. Most often the first private session is with the plaintiff, but the neutral may decide to do it differently depending on what he or she hears in the opening session.

There is no limit to the number of times you will meet in private session. Either party can terminate the session at any time if you believe settlement is not likely. The only exception is if you have a contract that requires a good faith attempt to resolve the dispute. In that case, you should expect to go through at least one or two private sessions before declaring an impasse. If you are in doubt, your lawyer should be able to advise you about how long you have to keep trying to meet the "good faith" requirement.

The Role of the Mediator. The mediator is not a judge. He or she will not be making any decisions about the merits of your case. Instead, he or she assists the parties in assessing the risks and benefits of going forward with the case and in finding a mutually agreeable compromise.

This will include discussion about the factual and legal issues in your case. The mediator may talk about the merits of your case, or the strength of the other side's arguments. This is not because he or she is siding for or against you.

This is because it is important for all sides to understand their risks when evaluating a settlement offer. Rest assured he or she is doing the same thing in the private session with the other side. Reaching a Settlement. Mediation is different from an arbitration in that the mediator does not render a decision. Instead, mediation allows the parties to make their own decisions and fashion their own settlement.

The mediator generally doesn't make recommendations but rather, allows the parties to make their own decisions based on a realistic analysis of their case. This is true even where all prior attempts at settlement have failed, where the parties are pessimistic about the prospects of settlement, and where the parties have spent substantial amounts of time and money preparing for a trial. So why does mediation work, when the parties have been unable to settle the case themselves?

There are a number of reasons. First, negotiations between parties or their attorneys may never take place without the assistance of a third party mediator. Attorneys often fear that the making of any "reasonable" settlement offer will be taken as a sign of weakness or will be used by the other side as the starting point for the next round of negotiations.

Mediation provides a safe environment for negotiation because the mediator can control and direct the communications. In this fashion, unproductive discussions can be avoided and concessions or proposals will be communicated only if they are likely to lead to a settlement.

Second, in those cases where some negotiations have taken place, they are often unsuccessful because the parties lack essential negotiation skills. Attorneys are often more interested in posturing, than in resolving disputes. As a result, they often employ hard bargaining tactics which emphasize the differences in their positions rather than seeking a common ground for settlement. Since the mediator's job is to keep the parties focused on exploring productive avenues to settlement, posturing and hard bargaining are often reduced or eliminated.

Third, mediation provides the opportunity for all parties to meet at the bargaining table for the express purpose of discussing settlement. All decision-makers necessary to resolve a problem are normally present. These decision-makers, who otherwise may be unavailable or distracted by other business matters, are able to focus their entire attention on reaching a settlement. Fourth, during the mediation session, each party is given the opportunity to directly educate and influence their opponents in the opening presentation.

Important issues can be emphasized and facts can be presented in a more favorable light. Also, the intensity of a party's feelings or emotions can be conveyed. As a result, the mediation session normally provides each side with a more realistic view of the opposing position one not filtered through lawyers and often results in the consideration of settlement proposals that otherwise would have been rejected.

In addition, mediation provides a way for parties to engage in settlement negotiations without having to talk directly to each other. A skilled mediator will often separate the parties, positioning them in different rooms while the mediator takes turns talking with first one side and then the other. This can keep negotiations moving while avoiding the kind of acrimony that often results when opposing parties talk or shout… directly to each other about their case. Mediation also works because it is confidential.

The parties typically agree in advance that anything said in a mediation cannot be used outside of the mediation — especially that nothing said in mediation can be used later in court, if the mediation fails to yield a settlement. And during the mediation, each party can choose what to tell — and not to tell — the mediator, and what to authorize the mediator to tell the other side.

I have served as mediator in numerous cases involving subjects including commercial contracts, shareholder disputes, trust and estate matters, personal injury, civil rights violations, medical malpractice, and insurance coverage. I also have frequently served as a lawyer representing parties participating in mediation.

In my experience, mediation is often the best and most cost-effective way to resolve a difficult case, either before litigation begins or in the early stages of litigation before a case proceeds all the way to trial.