Mediation In A Nutshell.
A mediation is a non-binding, settlement conference. Typically, prior to the mediation, the parties will agree to the selection of a neutral mediator. Sometimes the mediator is appointed by the Court. The mediator is usually an attorney or a retired judge who has been through special training to help people reach negotiated resolutions of their disputes.
Structure of A Mediation.
Generally speaking, mediation must be physically attended by all individual parties to a case, by a representative of any corporate party, by a representative of any insurance carriers in the case, and by at least one attorney for each party. Sometimes the parties will agree to waive attendance of certain parties or to allow parties to participate through a telephone conference.
Mediation usually begins with an opening statement by the mediator in which he or she will introduce himself or herself and provide an overview of the process to all parties. Then, each party has an opportunity to make a presentation or a short, informal statement forecasting the strengths of their case to the mediator (and to the opposing party).
After opening statements have been made, the parties will then be separated into private rooms. The mediator will speak to each party privately and ask for an initial settlement offer or demand to be made (if a demand has not yet been made).
The mediator will then privately, present the initial offer or demand to the opposing party and will encourage the opposing party to respond with a counteroffer. Usually, with each visit to a party's respective room, the mediator will point out weaknesses in that party's case in an effort to encourage settlement of the case. The mediator will travel back and forth to the respective, separate rooms of the parties until a settlement is negotiated or an impasse is declared.
Is Mediation Really Necessary?
Yes, mediation is mandatory in most cases, and a good percentage of cases settle at mediation. Sometimes cases can be resolved prior to mediation. On the other hand, attorneys can be stubborn. Clients can be stubborn. And, sometimes relationships break down between counsel in a contentious case. In order to appreciate the risks and weaknesses in one's case, it is often helpful to hear the opposing party's version of the facts. It can also be helpful to hear the perspective of a neutral, experienced, third-party. In those situations, an unrelenting mediator may be just what the doctor ordered.