Mediation is a process whereby litigants seek to resolve their differences with a third-party neutral. In lawsuits, such as those arising out of car accidents, the mediator is almost always another attorney. Usually, the attorneys for the plaintiff (such as the person injured) and the defendant will agree upon the selection of a mediator. Once the mediator agrees to help, the attorneys will then arrange a time for the mediation and the place of the mediation. Typically, mediations will be held at the mediator’s office.
The Mediator is Not a Judge
The role of the mediator is to help the parties reached a settlement. They are not there to deliver justice, or to determine who is right or who is wrong. They are not there to assess blame, or even to determine whether a settlement is fair or not.
Sometimes, the parties to a mediation will mistakenly try to argue their case before the mediator upon the belief that if they can convince the mediator that they are right, the mediator will “lean” on the other party to tell the other party why they are wrong. This is not the job of the mediator.
In some mediations, the mediator will meet with both of the parties at the outset of the mediation, and then the parties will each go into a separate room. Some mediators prefer not to have a meeting with both parties together, and instead, each of the parties will go to their designated room at the outset of the mediation. Depending upon the layout of the office, in some cases the parties might not even see each other all day.
The mediator then will go back and forth between the two rooms to deliver messages, talk confidentially to the attorneys and their clients about settlement opportunities, and seek to get the parties to make progress towards what hopefully will result in a settlement. Good mediators are adept at helping each party recognize the weaknesses of their case, the advantages of settling a case during the mediation, and employing various techniques to help the parties minimize their differences.
Everything Discussed With a Mediator in Private is Confidential
When a mediator meets with a party in their room, almost everything discussed with the mediator is confidential. The mediator will not discuss anything told to him or her with the other party when they visit the other party in their room except the information in which they are authorized to disclose. Typically, such information consists of a party’s offer, and the basis for such offer.
Should I Use a Mediator in My Case?
Today, almost all personal injury cases in Massachusetts will utilize mediation. Mediation may be either mandatory under statute, it may be ordered by the court, it may be desirable among the attorneys and their clients, or any combination of the foregoing.
Injury victims should not view mediation negatively. Instead, mediation offers an ideal opportunity to potentially settle a case without future litigation or a trial.
As an attorney, I view mediation as an opportunity to present the case of my clients to the defendants and their counsel. By fully preparing for the mediation, and after having carefully built the case of my client, the defendants and their counsel will know full well what the damages of my clients are, the evidence that we intend to introduce at trial, and the amount that we expect to receive as full and fair compensation for the damages and injuries caused. Based upon this evidence, they will also know what their exposure is if they refuse to settle for a fair amount, and choose to put the case in the hands of a jury.
What Happens if a Case is Not Settled During Mediation?
Many times a case will be settled during the course of the mediation. If that is the situation, the attorneys will then draft a settlement that contains the full terms and conditions of settlement, which will then be binding upon the parties after it has been signed.
Typically, a full settlement agreement is not signed on the day of the mediation, but rather there may be a short memorandum of the key terms of the settlement prepared. The attorneys will then draft the settlement agreement shortly after the mediation, and they will then coordinate various aspects needed to conclude the case, such as the payment required by the settlement agreement and dismissal of the case.
Not all cases are settled during a mediation. In some situations, the case may proceed to arbitration or trial. More often, however, there will be some progress towards reaching a resolution.
One example is that in a car crash case, a defendant may recognize and agree that they owe the plaintiff at least a certain monetary amount (such as $15,000), and the injured plaintiff may agree not to seek damages in excess of $100,000 for their injuries. The lawyers may then agree to submit the case to arbitration for the arbitrator to determine liability and damages.
In this example, if the arbitrator makes an award between $15,000 and $100,000, the arbitrator’s determination will prevail. If the arbitrator determines that the defendant is not liable, or makes an award less than $15,000, the defendant will still pay the plaintiff $15,000. If the arbitrator determines that the defendant is liable for more than $100,000, the defendant would still only pay the plaintiff $100,000.
It’s Important to Understand that a Mediation may only be Part of a Process for Settlement
If the mediation does not result in a settlement, in addition to the possibility of an arbitration as noted above, the attorneys for both the plaintiff and defendant may still engage in discussions and negotiations following the mediation. A second (or even a third) mediation may also be helpful.
We Will Be Prepared
Before a mediation, I will meet with you to discuss will the mediation so that you are prepared for the discussions and negotiations likely to take place at a mediation. My role will be to advocate for a successful outcome for you.