Mediation is an alternative to a jury trial that often leads to the settlement of lawsuits and legal disputes. Mediation can take place before or after a lawsuit it filed. It is now common for judges to order the parties in a lawsuit to mediate a case before it goes to trial. Judges know that many cases can be resolved in this way without the time, expense, and uncertainty of a jury trial.
What Happens at a Mediation?
Mediation is a less stressful and more collaborative process than a jury trial. Typically, a mediation will take place at the office of one of the attorneys or at the office of the mediator. You and your attorney will spend most of your time in a private conference room. The other party to the dispute and his or her lawyer will spend most of their time in a different conference room.
Often the parties will meet together with the mediator at the beginning of the process to discuss the procedures and to give an overview of each party’s view of the case. This is not like a closing argument. Most skilled attorneys present an overview of their case and do not “come out swinging.” Why? Because the purpose of a mediation is to create an opportunity for focused discussion, negotiation and compromise. Compromise is difficult when tempers are high. Sometimes one of the attorneys will give an antagonistic presentation in the mistaken belief that this will somehow help his or her client. We know that the best response is to not react. The goal of mediation is to reach a mutually agreeable settlement. This is not a Facebook argument where one scores points by being witty and insulting.
A substantial portion of the mediation involves private caucuses. In plain English, the mediator spends time individually with each side exploring the strengths and weaknesses of their case. The mediator encourages the parties to consider options for settlement. The mediator helps each side better understand the risks and the potential benefits of going to trial. In many, but not all cases, the mediator is able to help the parties reach an agreement to settle the case. In some cases that don’t settle at mediation, the parties will reach a settlement a week or two later. If settlement is still not possible, the parties move forward to trial.
One of the benefits of mediation and one of the reasons it can be so effective is that it is largely voluntary. Each side has the right to say “No” to any proposal. Because each party knows that the other party can end the mediation, each party has an incentive to cooperate in the process.
Why Would You Settle Instead of Go to Trial?
If you have already hired our firm, you probably did so because we have the experience and the ability to succeed in the courtroom. If you hired us because we are good trial lawyers, you may be wondering why you would settle your case rather than go to trial. The first answer is a simple one. When you hire a lawyer who is skilled in the courtroom, you actually have a better chance of obtaining a fair settlement. The other side knows that you can hold their feet to the fire. If the other side offers a fair and appropriate settlement and you can avoid the time, uncertainty, and expense of trial, it often makes sense to settle.
There are many other circumstances where settlement makes sense. In some cases, the key facts are in dispute and the outcome at trial is uncertain. You may want to avoid that uncertainty with a settlement. One of the parties may not have sufficient assets to pay a fair settlement and you may decide to settle for what is available. The law may be uncertain in your particular case. Or, there may be a time issue or other personal issue that affects your willingness or ability to wait for trial. Every client’s situation is different.
There are many factors that affect whether it makes sense to settle or go to trial. We carefully advise our clients about the risks and rewards of trial and settlement. Ultimately, the choice belongs to you as the client, but we will provide you with legal and factual information, advice, and recommendations so your decision will be a well-reasoned one that works for you. You do not have to make the decision alone.