What You Need to Know About Mediation

Nearly all cases filed, whether they are family, personal injury, or commercial cases, are required to undergo mediation before trial.  This is because mediation has proven to be a successful method of alternative dispute resolution.  This article is designed to acquaint you with the process and give you some tips in making the most of your mediation opportunity.

What is Mediation?

Mediation is a form of settlement negotiation conducted and assisted by an impartial attorney trained in the art of settling lawsuits.  Unlike arbitration and other kinds of alternative dispute resolution, mediation is non-adjudicatory.  The mediator will make no findings of fact or conclusions of law as it may apply to your case.  The mediator will make no decision that is binding on you.

How does the process work?

The mediation process, a private meeting, comprises of several stages. First, the attorney and the client meet the mediator in a general session.  During this initial session, the mediator explains the process, sets the ground rules, and gains an understanding of the client’s theory of the case and the client’s position.  The clients are encouraged to speak openly with the mediator.  The mediator will often ask clarifying questions to determine if there are any areas of agreement. Generally, the parties will not be in the same room at the same time.

The sessions, called caucuses, will occur in separate conference rooms. These caucuses are confidential.  Anything said to a mediator during a caucus cannot be repeated outside the caucus except by express permission of the party.  This confidential meeting allows counsel to express matters that he or she would be unwilling to state in the presence of opposing counsel.  Here, the mediator, the party, and counsel undertake a candid discussion of risks, the parties’ interests sought to be protected, settlement flexibility, and strengths and weaknesses of the case.  At some point during the caucus stage, the mediator’s goal is to begin serving as a shuttle diplomat between the parties, conveying offers back and forth.

Finally, if the mediator can get the parties to reach a consensus on their disputed issues, a written document will be prepared memorializing the essential terms of the agreement.  While no one can impose an agreement on you, recent law in Texas requires that once you have reached an agreement and placed it in writing, it is irrevocable.  It is also usually necessary after the mediation is over that one or more of the attorneys prepare a final settlement agreement and appropriate court orders to fulfill the agreement reached at mediation.

The mediator is prohibited from disclosing anything that occurs at mediation and may not be subpoenaed to testify in your case.  The mediator will only report to the court that the case did or did not settle.

Is a Mediation better than Trial?

Mediation offers a litigant many advantages.  The parties maintain control in mediation because no outcome is imposed.  The parties themselves must consensually agree to any result.  Rarely will a settlement of any kind be reached unless all parties make concessions and compromises.  The primary advantage over trial is that your result will be crafted by you and your adversary who know more about the dispute than a judge can ever learn during a trial.  Although we remain very confident about the facts of your case, judges and juries often have very unpredictable results.  Mediation is a way to have certainty to your situation.

Mediation has proven to be more cost effective than trial.  Attorneys’ fees can be saved by all parties making it more advantageous to settle and trial expenses that may have to be deducted from a settlement can be avoided.  In addition to the monetary savings, a significant amount of time will be saved.  A mediation usually lasts one day, and a trial could last from two days to two weeks.  And finally, allegations made in court will remain a part of the public record.  Mediation offers parties an opportunity to resolve their matters in a confidential setting.

What else should I know?

There will be many periods during the day that will seem to be a waste of time.  However, the mediator may be counseling with the other side on potential solutions to the problem which could be beneficial to you.  You may also experience frustration with the other party’s unwillingness to be reasonable.  You should remain patient and keep a good attitude.  Often the mediator can persuade a party to continue negotiating.

What if I do not settle?

Your case will continue its pretrial schedule and go to trial.  All the remaining preparation will have to be done and the case tried before a judge or jury.

What should I do to be prepared?

You should keep an open mind, be willing to listen and learn, and consider all your options.  The mediation will frequently educate a party on the other side’s position and beliefs when they had not otherwise been apparent or known.  The more all parties know about the conflict, the more likely a solution can be reached.