Mediation (2004)
I have been on several mediations in the past few weeks and one of them I found particularly interesting. What was interesting was how the mediator spoke to my client about her lawsuit. Before I get into that however, I will briefly explain how mediation works.
Firstly, the point of mediation is to craft a settlement that all parties can live with, without having to conduct an expensive trial. For the most part, it works quite well. The parties with their lawyers usually start the day in one room. Each side has an opportunity to present their side or case. The mediator will have already read each party’s Mediation Brief prepared by their lawyer however, some mediators want to hear directly from the clients in addition to their lawyer.
After each party has had a chance to make some remarks, each side is then taken into their own rooms with their lawyer. The mediator then employs “shuttle diplomacy” meaning that the mediator will receive an offer to settle from one party and then take it down the hall to the other party.
A good mediator will “sell” the first offer to the other side and if necessary help the other side recognize the validity of the position and the offer. The mediator will tell each side that anything that is discussed while the mediator is in the room can be divulged to the other side unless the mediator is asked not to.
The other side then considers the offer usually in the absence of the mediator. The factors that influence the validity of an offer include any weaknesses in the other side’s case, the risk of defeat at trial and the costs of going to trial, to name a few. The other party and their lawyer will then prepare a counter-offer that the mediator will present to the other side. Once again, the mediator may attempt to sell the counter-offer. Some mediators do not do this, but some do.
It goes on like this for several hours and it really does take around 3 to 4 hours to arrive at a settlement. What I have observed having done quite a few mediations, is that the client’s attitude will dictate how long it takes. If a client goes into mediation feeling indignant or stubborn about settlement, it will take longer or it might not happen at all. It is best to avoid arriving at mediation in this stance.
On this particular mediation I recently attended, the mediator started the day by describing my client’s lawsuit as a “product” that my client wished to sell. He made these remarks in absence of the defendant and his lawyer. This mediator told my client that the defendant was the only person who wanted to “buy” the product and that the product has no value to anyone other than the defendant. My client understood that if the defendant doesn’t “buy the product”, there will be no “sale”. I thought that was a very good way of relaying the economic realities of litigation and the necessity of being reasonable with offers.
Please contact me if you are contemplating starting a lawsuit, to discuss your options including mediation.
