De-Mystifying Mediation: The Ins and Outs of Mediating Your Case

• What is Mediation: Mediation is an informal settlement discussion that takes place over several hours with the help of an independent mediator (chosen by the parties) to try to resolve your case. Mediation is often a great alternative to trial if there is a reasonable chance of settling your case because mediation is far less expensive, quicker and less stressful than trial. While mediators do not have the power to determine the outcome of your case, they help guide the parties toward resolution. Mediation is very common and often results in settlement. While a mediator will charge for his or her services, these costs are typically split evenly among the parties, and they are much less than the cost to hire experts for trial. Think of mediation as “shuttle diplomacy”—where all the parties are in the same building but in separate rooms while the mediator goes back and forth to talk with each party. Now, post-Covid and with the rise of Zoom, mediation can, in many but not all cases, be held remotely.
• Who is the Mediator: The role of a mediator is to be a neutral third party who is retained to negotiate a reasonable settlement between the parties. A mediator is not a current judge, so he cannot rule on anything. A good mediator will not be afraid to be blunt at times in assessing the merits of each party’s case and discussing the risk of going to trial compared to the benefits of settling the case.
• What Needs to Be Done Ahead of Mediation: In advance of mediation, your attorney will provide documents to the mediator and, in some cases, to the other party or parties, to support your case. This includes a “mediation brief", any medical or wage loss records, billings, photographs, and any other evidence necessary to properly present your case. It is important to select a mediator who will use his or her experience and knowledge to frame your case in the best light possible to the opposing side(s).
• Strategy and What to Expect from Mediation:  Mediators are fond of saying, “Nobody leaves a mediation entirely happy because a productive mediation entails compromise.”  While this is true, it does not mean that you will be unhappy with the result especially when weighing all the variables. There are usually three possibilities that can result from a well-run mediation: (1) The matter settles; (2) the matter builds sufficient momentum to reach a settlement at a later date; or (3) no settlement is reached, but you and your attorneys have had an opportunity to hear the evidence and arguments the Defendant intends to present at trial. Depending on the length of the mediation, the bulk of the arguments and evidence is sorted through early on, and it then becomes a matter of achieving a settlement that is satisfactory to the parties. Only you, in consultation with your attorney, can make that decision.
• Why Mediation? Trials are unpredictable and costly. As the expression goes, you can try the same case 10 times and get 10 different results because you never know what a jury will do. Sometimes mediation is ordered by the court shortly before trial. Other times, parties choose to mediate to save time and costs. These include costs for depositions, examinations, experts, and a whole host of trial costs that are out of your attorney’s control. Sometimes, trial dates are scheduled for years down the road because of the lack of available courtrooms and judges. Mediation allows you to take some control back and avoid the unpredictability of the court and jury process.

Don’t Worry! Nothing Bad Can Happen to Your Case at Mediation: Mediations are confidential meaning that the judge and jury will never know anything discussed at mediation, including settlement demands and offers. This means that if your case is not resolved at mediation, you are not bound by anything that happened at mediation if you go to trial. Remember, mediators cannot decide the outcome of your case. While mediation is not for every case, it is a useful tool in many cases.