Like many aspects of litigation, mediation can be stressful and cause anxiety. Try not to worry. Mediation is one of the less formal aspects of litigation. You aren’t under oath. There is no court reporter. Nothing is binding. Everything is confidential. And depending on the mediator, the attorneys might not even have to wear suits. Having said that, mediation is one of the most important steps in litigation so it should be approached seriously and with preparation and the right expectations.
PURPOSES OF MEDIATION
1. The purpose of a mediation is to SETTLE THE CASE. That’s it. Settlement is what you want, it’s what the other side wants, and it’s the mediator’s job to get it done.
2. While the purpose of mediation is settlement, settlement doesn’t always happen. That does not mean, however, our time and efforts spent were in vain. Another purpose of mediation is to learn more about the case -- its strengths and weaknesses, the other side’s position, and a third party’s opinion. This information can be very helpful if the case must go to trial.
PROCESS OF MEDIATION
All cases are different and all mediators have their own style. That said, the following list are some of the most common features of mediation:
1. Mediator. There will be a mediator whose function it is to help both sides compromise and come to an agreement. The mediator will have a lot of experience and wisdom to offer, so listen to the mediator.
2. Shuttle Mediation. You and the opposing party will be in separate rooms and the mediator will shuttle between the rooms, asking questions of both sides, learning about positions, assessing strengths and weaknesses, and essentially negotiating with each side. He will not share our discussions with the other side, and he won’t share his discussions with the other side with us, without permission.
3. Communicating with the Mediator. In Court, you sit at a table for the duration of the trial and say nothing unless you’re on the stand testifying. Throughout litigation, you never speak to the opposing attorney. Mediation is different. While the mediator might be an attorney or a former attorney, you are free to answer questions he has for you. The only caveat there is if your attorney doesn’t want you to answer a particular question. In that case, he’ll stop you and provide the answer or ask the mediator to give you some time alone to discuss.
4. Negotiation. Mediation is inherently time-consuming and sometimes maddening. In many ways, it feels like buying a used car, with offers going back and forth and the "salesman" needing to talk to his "manager" after every offer. The insurance company or opposing party is negotiating with you in exchange for you releasing your claims against them. It might not feel pleasant, but don’t take it personally. This is a business decision for the other side.
5. Poker Face. At times during the mediation, the mediator will tell you what the other side is offering. Don’t slam your fist on the table or jump for joy. Maintain your poker face. After the offer is made, you and your attorney will probably have time alone to discuss it, and to come up with a counter-offer. Chances are, you’ll be insulted several times during the mediation, but don’t let it show. Be patient. The process works.
6. Patience. For much of the deposition, you, any person you bring for support, and your attorney will be in a room all by yourselves, waiting on the mediator to come back from his discussion with the other side. While you’ll have plenty to discuss throughout the day, there will be lulls, especially late in the afternoon. It’s not a bad idea to bring a book or a tablet for the lulls.
7. Compromise. Come to the mediation willing to compromise. Inherent in the word "settlement" is the fact that you may take less than you hope and the other side pays more than they expect to pay, but the benefits of avoiding trial are worth it.
The goal for most attorneys in a personal injury case is to get it to mediation and get it settled. Why? Trials are costly, unpredictable, and stressful.
1. Stress. Lawyers do this for a living, so it’s nothing attorneys can’t handle. But it’s usually an indescribably unpleasant experience for someone not used to being in court. You’re on public display, your motivations will be questioned, you will be cross-examined, and things that you hoped might never be disclosed about you will be used by the other side to win their case.
2. Predictability. Trials are a risk in many ways. You never know what a judge or jury will do with a case, who they’ll believe, and what they’ll award. Even if you win your case, a jury might give you a measly amount and think they did you a big favor. In a mediation, YOU have control over the outcome, and you walk away with money in your pocket.
3. Cost. As to cost, you’re looking at tens of thousands of dollars that will end up coming out of your award. Thus, if you can settle in mediation, the amount can be worth more than it would be after the expense of trial.
4. Time and Finality. Cases take a long time to get to trial -- sometimes a year or more. If you win your case, the other side will likely appeal, and you will wait another year for an appellate court to make a decision. If the appellate court overturns the lower court, the case might get sent back to the lower court for another trial. And you do it all over again. In mediation, when the case settles, it’s over and you can move on with your life.
With these points in mind, settling a case where possible is a good outcome and one to strive for. That said, if the other side refuses to participate in good faith and fails to provide any reasonable offers, you must walk away. A good personal injury attorney will help you know when to walk away, and will be excited and ready to take the case to trial to let a judge or jury decide what your case is worth if need be.