Mediation, while no longer really considered ‘new,’ is relatively still in its nascent stage – at least in terms of its use. You’ve probably heard the term thrown around or maybe you’re reading this because you’ve got one coming up in your case. Your most important questions is probably ‘what is mediation?’ Luckily, the mediator will explain this in his or her opening statement before you’re launched into the process. However, it’s still pretty nerve-racking to walk into a process that hasn’t been explained to you.
The biggest mistake we as lawyers make when preparing a client for mediation is our failure to accurately communicate what to expect in terms of attitudes, exchanges, and potential outcomes. Generally, when lawyers explain mediation to their clients, it’s either going to be a general overview and some kind of explanation that the mediator isn’t a judge and can’t make any decisions. While calming, sure, it doesn’t do much to provide any clarity as to expectations or how to properly act, respond, etc. Of course, there’s also a sect of attorneys that view mediation as a time for bullying and intimidation. Frankly, if your lawyer gives you an explanation that involves anything tending toward a description of this type of behavior, you will not be in for a successful mediation.
So, that leads me to the point of this little discussion – what to expect in mediation and how to make your mediation successful. A successful mediation does not necessarily mean that you settle the case. More importantly, it is import to expect that there’s very little chance that everyone will walk away happy even if it does settle. Mediation is a litigation tool where the parties are able to openly discuss the issues in the case to work towards a solution, all with the help of a neutral third party.
The mediation will start by the mediator introducing himself or herself and giving a brief description of the mediation process and any preferences he or she might have. Next, one party will speak (usually the Plaintiff) and explain its position to the dispute. Once finished, the mediator will allow the other party to give its side of the story. It’s at this point that expectations in behavior are tricky. Tensions can get pretty high while the stories are being told, and sometimes a party will lash out. Don’t do this. Stay calm, listen, and be polite. Once everything is out on the table, depending on the mediator’s style, the parties will likely be separated into different rooms. The mediator will then bounce back and forth, often playing devil’s advocate, so to speak, in an attempt to get the parties to examine the strengths and weaknesses of their side of the case. And in this process, it can be very stressful and very exhausting – expect that and be prepared for it. However, don’t give up simply because you’re tired or hungry. Remember, this is your only chance in the litigation to choose your outcome. At summary judgment, a Judge chooses and at trial, it’s either a Judge or a bunch of strangers (aka the jury of your “peers”). If you are able to settle, then the terms will be written down and signed by the parties. If a settlement can’t be reached, the mediator will sign a form stating there was an impasse and will give you some pleasantries and you’ll be on your way.
The key thing to remember about mediation is that, if used properly, it is an excellent tool to resolving a dispute. I do have a couple of expectations that I encourage you keep fresh in your mind as you go to mediation. The first, be prepared to be stressed and maybe even angry at times. This is normal. But be prepared so that when it starts, you know what to do. Keep calm, take a break if necessary. And this leads to the second – expect that you’re not going to leave happy about the settlement. You won’t be – and it’s because you expected to win the zero-sum game of trial when you walked into the room. Finally, always keep in mind that you don’t have to settle, but that this is your chance to determine the outcome. The terms are created by you and the other party – not by a Judge and not by a jury. As an added bonus, the terms are not limited either… maybe you settle on money or maybe you settle with something whacky – it’s all up to you.