Mediation – A Chance To Put The Dispute Behind You

Mediation Is A Relatively Informal Meeting To Discuss Settlement 

Mediation, which is an assisted kind of negotiation, is one of three or four significant events in your case, and is really the only day set aside specifically to talk about settling your case.   It is a day to set aside differences and to focus on areas of agreement.  It is also a day to look at both the strengths and weaknesses in your case.   Every case, including the defendant’s, has both.  And only truly inexperienced trial lawyers ever describe the eventual outcome of any lawsuit using words like “slam dunk” or “guaranteed.”   The fact is, when you place the decision about your case in someone else’s hands – whether it’s a judge or a jury – there is a significant degree of unpredictability.  So it’s always wise for all parties in a lawsuit to take a hard look at settling the dispute at the right time.  In most lawsuits, that time is the day of the mediation conference.

Mediation usually takes place toward the end of the case, when both sides have largely completed their information-gathering efforts.  It usually takes the better part of a day, and is where you and I (and the opposing party and its lawyer) will meet at a professional negotiator’s office to see if your case can be settled on terms acceptable to everyone.  The mediation process has been around for hundreds of years in one form or another, but became popular in American legal circles in the 1980’s, when judges began ordering parties in lawsuits to meet, at least once, to see if the case could be settled. (Previously, it was up to the parties to mediate, and few did.) For many trial lawyers, this new command to mediate was an outrage.  They viewed themselves as warriors, and the idea of attending a cordial meeting with snacks and refreshments to work out differences with the enemy was preposterous. Indeed, few thought mediation would work.  But it did, and does, at an astonishing rate. In my experience, more than 90% of all cases now settle in a mediation conference. That means only a small fraction of lawsuits filed in court ever reach a jury. So it’s important to know something about the mediation process, because you will likely be required to attend mediation in your case, and your case might very well end there.

You should know that mediation is nonbinding. In other words, you don’t have to settle at the mediation conference. (Of course, if you so agree to settle, your agreement would bind you.) So the mediator’s role is to assist, to facilitate, to guide – but not to decide. The mediator is a professional negotiator, but that’s it. She or he is not a judge, and cannot force you to do anything. The mediator will help both sides develop an understanding of the problems and work toward a practical resolution.  The mediator will evaluate the strengths and weaknesses of each side’s argument, and is likely to be very direct with you about what he or she thinks of your case, with the goal of helping you take an honest look at your case.

This process may generate options that help you – and our adversary – reach a mutually-satisfactory resolution.  In contrast, litigation normally involves the maximum level of disagreement and the harshest outcome for the loser.  So, things you’ll find the mediator doing include (a) working with us and the defendant to see a more objective view of the facts, (b) focusing on the future, rather than on the past (although discussion of the past may be needed to get past it); and (c) sometimes playing a supportive role, and sometimes playing an adversarial role, to allow the parties to see how the other side might present the case.

Will I Have To Talk?

You do not have to talk in the opening session, but you will be expected to talk privately to the mediator once we break into separate sessions.  You should be fully prepared for questions from the mediator, and I encourage that. It is a great chance for you to give your perspective at the mediation and to take advantage of the opportunity to be heard. You’ll want to be completely honest with the mediator and you should refrain from trying to avoid answering a question if necessary. Mediators often find our clients very persuasive. Direct communication about the dispute allows you to have considerable control over the process.

Do You Have Any Specific Tips For Me On How I Should Mentally Approach This Process?

Yes, a few short ones.   Be flexible.  Be ready to acknowledge both the strengths and weaknesses in the case.  All cases have them, and that is true both for us and for the defendant.   Expect the unexpected; mediation can sometimes takes unanticipated twists and turns on the way to closure.  Be respectful.  You can disagree with positions and with the mediator without treating them in an unpleasant manner.  Consider the mediator your “first juror.”  Mediators come to the case fresh for the first time at mediation.  Their views will often mirror what a jury, also fresh to your case, may think.  Be prepared for a long day.  A good mediation with complex issues can take a full day, and may require eight or ten visits to our room by the mediator.  Don’t be offended by financial offers from the defendant in the early rounds; they will usually be just as offended by our demands in the early rounds.  Avoid fixed expectations coming into mediation.  Be open-minded.  Don’t pay attention to the fact that one side (us or the defendant) is moving faster, or more slowly, than the other.

How Many Times Will We Have To Mediate?

As a rule, we’ll mediate only once during the entire course of your lawsuit. (Some types of cases have to go through a pre-filing administrative process, and it is possible you might mediate at that stage, before a lawsuit is actually filed.  But once an actual lawsuit is filed, you’ll likely have just one opportunity to attend a mediation.) So it may be the only opportunity you have to play a real role in the outcome of your own case.  If it does not settle there, a judge and jury may decide your fate for you.

Do I Have To Be There In Person?

Yes.  Mediation is a major event in your lawsuit, and the judges generally require the parties to attend in person.  I cannot think of a case I’ve had in my career where either the plaintiff or defendant was excused from attending in person.  It is possible that other participants might appear by phone, such as insurance adjusters or agents, where the defendant has insurance for the claim.  But they are generally the only people who can attend that way.  The parties themselves must attend in person.

What Would You Describe As the Key Benefits Of Mediation?

There are many. First, mediation can be far less expensive for you than pressing on to trial.  While a mediator charges an hourly rate for his or her services, mediation usually starts and ends within the space of a single day.   If it settles, you’re done.  The case is behind you that day.  Second, mediation is confidential.  No one is permitted to disclose what was said or done   Indeed, even a court generally cannot order anyone present at mediation to reveal what was said.  Third, as I’ve said, mediation gives you considerable control over the outcome of your own case.   If your case doesn’t settle, a judge or jury – not you, and not the defendant – will decide the outcome, based on what they (not you or the defendant) think is the right outcome.  The deal you can strike in mediation – including but not limited to financial compensation, a letter of recommendation, a positive job reference, reinstatement, a promotion, or a pay increase – might very well be better than what a jury or judge may offer.  In fact, in many instances, you can negotiate a better outcome in mediation that you might get in trial.  Ask me why that could happen.  (This is a publicly-available website; some thoughts are better shared between us directly.) Last, a mediator is a neutral party, so you’ll get an outsider’s view of your case.  You might like what the mediator thinks of the case, and you might not, but you’ll hear it either way.  That unvarnished “truth” can be very helpful to settlement, for both sides.Of course, if the case doesn’t settle at mediation, and if the judge or jury rules against you, you’ll not only walk away without any compensation or benefits, but you’ll also likely receive a bill for the defendant’s costs.  So mediation is a way to negotiate a compromise without the risks associated with a full trial.

How Do You Choose A Mediator?  What Kind Of Training Do They Have?

We choose mediators based on a range of factors.  In a nutshell, we want a mediator who is an excellent negotiator, who has subject-matter expertise, and who has a track record of both successes in bringing disputes to closure and in truly being impartial.   There are about five mediators I use regularly.    They vary widely in personality and style, and that plays a role, too, in whether I will use them in a specific case.   The best mediator will be someone whose personality and skill set perfectly matches the particular case. I should mention that choosing a mediator is a joint decision between our firm and the lawyers representing the defendant.  But defense lawyers look for the same qualities, and we usually have no trouble reaching agreement on who to use for mediation.

Should We Mediate Early? Does That Make Us Look Weak?

My view is, the earlier we mediate, the better. Waiting too long to mediate can impede settlement possibilities because the parties can become entrenched in litigation positions and the accumulation of attorneys’ fees and costs can make settlement harder.  Also, in many cases, both parties already have a fairly good idea about the facts, and can mediate in good faith without extensive and expensive work by the lawyers.  I have never believed that mediating early makes either side look weak.  It’s a smart thing to do.

What Will I Actually See Happen At Mediation?

Mediation usually begins in a large conference room, with the mediator at the head of a long rectangular table and the parties (with their lawyers) on each side facing each other.  This joint session usually begins with the mediator talking first, about the value of settling the case that day.  The length of this opening discussion by the mediator may range from as little as a few minutes to as much as a hour. I would say their average length is about ten to fifteen minutes. During this segment, the mediator will talk about the benefits to each side of bringing the dispute to a close, and will encourage both sides to keep an open mind.  The mediator will run through a series of other points as well, including the importance of keeping everything discussed confidential.  Some mediators will talk about cases they’ve handled, both as a mediator and as a lawyer.  Many mediators will point out that while both sides firmly believe they will win, there can be only one winner at trial, and that both parties need to remember that as they negotiate.  They will talk about the fact that any experienced lawyer can point to cases they’ve handled where the outcome was not at all what was expected – cases that were won despite the fact no one expected it, and cases that were lost that seemed a sure bet.  This is the mediator’s way of reinforcing that when a judge or jury decides a case, they may have a very different idea of “the right outcome.”  Some mediators tell “war stories,” giving short examples of cases they’ve handled and the lessons learned from them that may be helpful in our mediation.  Some will stress that both sides will have points the jury will like, and that ignoring the other side’s arguments is not wise.  One mediator I particularly like often tells the parties that he’s “never seen a pancake so thin it only has one side.”  What he is saying, in effect, is that you cannot disregard what the opponent says, because every dispute truly has two sides, and the jury gets to pick which one it likes best.

So the mediator’s opening statement serves as a kind of ceremonial start to the mediation process. The mediator outlines her role and the role of the parties, describes the mediation process, establishes a cooperative tone and sets the stage for settlement. Although the lawyers have heard mediators’ opening statements on numerous occasions, typically the process is a new experience at least for the plaintiff, and a full explanation of the process allows parties to hear about what the day will be like.

Once the mediator is finished, the lawyers for each side have the opportunity to give a brief – and sometimes not so brief – statement about the case.  My own approach varies widely.  I may give a short opening in some cases, a long and detailed opening in others, or no opening at all, for reasons I will not set out here.  Sometimes, the defense lawyer will likewise decide that giving an opening statement is not in their best interests.  Nothing specific should be drawn from these decisions.  Good lawyers evaluate and handle every case, and every situation, differently.

Finally, the mediator may then invite the parties themselves to speak in the opening session.  Notwithstanding this invitation, it is rarely a good idea for the parties to speak at this time, and it is rarely done.  There will be plenty of talking during the rest of the day, in private sessions with the mediator.  I strongly discourage personal statements from either party, because it can purposely or inadvertently create tension or hostility or, worse, can lead to unintentional comments that affect the value of the case.

Once this opening session is done, one of the parties and their lawyer will move to a different room, usually far enough down the hall to allow confidential, and sometimes spirited and emotional, discussion, without being heard by the other side.  The mediator usually starts the private sessions by coming to our room first, since we represent the person bringing the claim.  The mediator will immediately dig into the details of the case, and will want to hear from our client directly.  This will be your chance to get the mediator focused on the important facts.  That means you’ll have a chance to speak openly and with great passion about the events that led you to this point.  This opportunity for you to speak openly is invaluable.  As you do, the mediator will begin to pick up clues about what can bring you, and the defendant, to mutually-agreeable terms.  The mediator will repeat this process in the other room as well.

During this first session with us, the mediator may spend as much as an hour with us.  When done, he or she will probably spend a similar length of time with the defendant.  This first, in-depth round of discussion in each room allows the mediator to get a deep sense of the things that will make a difference.  Subsequent rounds are usually shorter, and will likely grow shorter and shorter, with the final rounds of visits by the mediator sometimes lasting no more than a few minutes.  This happens because, as mediation progresses, the parties narrow the areas of dispute to just a few points.  It will be in these final rounds that any remaining details get worked out and a deal made.  Of course, the final rounds may also make it clear the parties simply cannot reach agreement.

If an agreement is reached, the parties will draft and sign a short Mediation Agreement, normally just a page or two in length. That, in turn, is followed within a week or two by a lengthier agreement that contains additional, standard terms but which largely mirrors the deal made at mediation.

But keep in mind that once agreement is reached at mediation, it generally becomes binding at that time.

Who Will Be There From The Defendant’s Side?

Generally, the defendant’s side is represented by their lawyer and by a person from the company.  It could be a high level official responsible for making financial decisions, or it could be a key witness in the case, who is there to offer insights about events discussed by the mediator.  Sometimes, an insurance adjuster is present, too, if the company has insurance coverage for your claims.  This is how the defendant’s mediation team looks in the majority of the cases.  There could be another lawyer or two, and possibly one or more people from the company as well.  It just depends.

Can I Invite My Spouse Or Partner At Attend?

It may be possible for a spouse or partner to attend.   Please let me know as far in advance as possible, so that I can discuss it with the defendant’s counsel and mediator.  The general rule is that persons who are not a party to the case cannot attend.  However, my experience is that for a plaintiff who truly relies on the guidance of their spouse or partner, having that other person attend can be a real benefit.  On the other hand, it can also be a detriment.  If the spouse or partner has not been deeply involved in the case from the outset, their last-minute opinions can actually derail the mediation.  The same is true of phone calls placed to others during mediation, especially when the case is on the verge of settling.  These calls can harm the process because that person is unlikely to offer more than an uninformed or, worse, a purely emotional opinion.

Keep in mind that you, and you alone, are actually in the fight.  Continued litigation affects you most personally.  While others may encourage you to press on, a prolonged battle will not affect them.  Seeing this sometimes reminds of school kids who shout “Fight! Fight! Fight!” from a distance while the actual combatants slug it out. Often those onlookers don’t have the strength to step into the ring and take a punch themselves.  Only the truly committed do that, and only the truly committed can decide when the mission has been accomplished or the battle needs to end.  The view from the bleachers is very different. Remember that when the bleacher crowd is talking to you.

How Do We Decide What To Ask For?

I will discuss that with you before and at mediation.  The factors vary widely, and it is better that I discuss them privately in your particular case.

How Soon Will I Get The Money If We Settle?

It varies, but figure two to three weeks, on average, from the date the post-mediation, formal settlement agreement is signed by all parties.  In some cases, a court must approve the settlement.  That can add a slight layer of delay. But we move as quickly as possible to bring closure, including the payment of the compensation and the completion of any other agreed terms.

If we do agree to settle, what happens from there?

If the case settles, it ends at that moment.  It is behind you, except for the signing of the final agreement.  You can put it behind you and focus on the future, and on things that will make your life better.  For many clients, settlement at mediation brings complete closure and a wonderful peace of mind.

What if we don’t settle?

If it doesn’t settle, the case will continue, and a judge or jury will decide the outcome of your case.  Mediation does not slow the pace of progress.  The case will press on at full speed. But don’t overlook the value of resolving your case at mediation.  It may be your last chance for an outcome that you control, and that offers benefits, as I’ve discussed above, that a judge and jury cannot order the defendant to provide.   Most cases can be settled if the participants are genuinely interested in doing so. It often just takes patience, flexibility and a little creativity to find the right solution.

Categories: Age Discrimination, Disability Discrimination, Discrimination, Ethnicity, National Origin & Color Discrimination, Gender Discrimination, Pregnancy Discrimination, Race Discrimination, Retaliation, Settlement, Uncategorized, Wage & Hour/Overtime, Whistleblowers

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