Mediation is a voluntary process, designed to facilitate a negotiated resolution of your case. It often works to settle claims and avoid the delays, expense, and uncertainty of litigation. It takes place outside of regular court proceedings and involves the parties discussing their dispute(s) with the assistance of a trained and impartial third party, known as the “mediator.” Unlike your judge, the mediator is a facilitator with no power to render a resolution to the conflict. Thus, you are free to take or leave any offer made at the mediation. If you are going to mediation, it is likely that your case has already progressed through a fair amount of the discovery process. This includes investigations, taking fact and expert witness depositions, and the exchange of written discovery.
Before mediation, your lawyer probably already provided the defense with any information discovered through his or her own investigation. Depending on the stage of discovery, this may include your medical records, medical bills, employment records, expert reports (which can provide opinions on a number of things, including defendant duties, obligations, and whether or not the defendant’s alleged conduct more than likely caused your injuries), fact witness statements and depositions, and any other documents that are relevant to your case. Likewise, your lawyer has probably collected information from the defendant, including written discovery, and sworn testimony from many, if not all, of the defendant’s fact and expert witnesses. It is important for both sides to have this type of information in order to make informed decisions related to the defendant’s responsibility and the extent of your injuries, and any future care that may be required.
Because the mediator is not involved with the case prior to the mediation, he or she will request the parties educate the mediator by providing a position paper prior to the deposition. While there are no formal requirements, a position paper might consist of a description of the parties and main personalities involved in the dispute, the nature and size of the dispute, and the particular issues of fact and law involved in the case. If available, it may include a listing of settlements and verdicts from factually comparable cases. It may also contain an outline of the legal proceedings to date, costs incurred and to be incurred if the case continues, previous negotiations including demands and offers of settlement and the reason for rejection, and party options moving forward if they do not settle. The mediator will review this document prior to bringing the parties together at the mediation.
The mediation will typically start in the morning and, depending on the size of the case, may be scheduled for one, or multiple days. All participating parties, along with the mediator, meet in one room. Introductions are made and, if they choose to do so, the parties present the evidence that supports their case(s). Once these are completed, the parties go to separate rooms where they remain while negotiations are started.
Depending on the posture of the case, the mediator will go to one of the rooms and begin discussions with either the Plaintiff (the party who is seeking compensation for their injury) who will make a demand for payment, or the Defendant (the party who has allegedly harmed the plaintiff) who will make an offer of settlement. The mediator will then bring the offer (or demand) to the other party, along with any additional information the offering party believes is an important consideration for evaluating the pending offer/demand. The receiving party can either accept the offer, at which point the parties will agree to a settlement, or they can reject it and make a counter offer. If it becomes clear that a settlement cannot be reached, one of the parties can end the mediation and walk away. At that point, the parties return to litigating the case and moving toward trial.
Whether your mediation ends in a settlement or not, it can be a very beneficial tool for both parties to discover the claims and defenses of opposing parties, as well as their respective valuations of your case. Attorneys at Stag Liuzza have extensive experience in reaching settlements through mediation, and they understand that even if a mediation is not successful the first time, it can be beneficial to keep an open dialog with the defendants concerning settlement prior to trial as long as it is productive and it is in the best interest of our client’s case.