{5:10 minutes to read}
You’ve been sent to mediation. What’s next?
You’re going to mediation; you asked or agreed to go, or a judge sent you. It shouldn’t matter. Embrace the opportunity! This is a “no risk” opportunity to settle your dispute, early on, before investing significantly more time and resources, and to do so on your own terms; the outcome will not be in the hands of a judge or jury.
You will also have an opportunity—perhaps your first, and maybe the only one you will have, at least before a trial—to meet and speak directly to the other party. So go prepared to engage; to explain your position; ask questions; express your thoughts; and to listen—both to the other side and the mediator. And be honest with yourself going in; unless you were directed to go to mediation by a court, kicking and screaming against your will, you start with a desire to settle. (Even if you were dragged in, and even if it is not a case that you believe should have been seen sent to mediation, you’re there; at the very least you will learn a little something about the other side’s case, and, perhaps, even your own.)
Of course, everyone wants to settle on her terms, but most cases are not settled with a complete capitulation and a letter of apology from the other party. So, be open to compromise, where appropriate, and to creative solutions, for which mediation provides a unique opportunity.
What can I expect?
First, expect a mediator who is engaged, who knows what your case is about, who has spoken with the attorneys prior to the mediation session, and who has reviewed submissions and key documents that may have been provided in advance by the parties.
Then comes the mediation session.
At the outset, the mediator will meet with the parties and their attorneys—often in a joint session—to, at the very least, describe what mediation is and the process she will follow. Expect the mediator to emphasize that the mediation will be confidential and that, in almost all instances, anything said in the mediation cannot be used in any legal proceeding; and to encourage the parties to participate openly, explain their position and listen to that of their adversaries. Then, a mediator will usually turn to each party and ask that they explain their view of what the dispute is about and their position. This is often done in a joint session, but can be done in a caucus, where the parties meet with the mediator separately.
If in a joint session, this is your opportunity to speak directly to the other party and to explain your side of the dispute. If there is a personal or emotional aspect to the dispute, it’s your chance to look the other side in the eye and tell them exactly how you feel, how you have been affected by what has taken place, and to hear the other side’s explanation. Often times, this can be cathartic; a necessary first step before the parties can engage in meaningful discussions towards a resolution. After this is completed, you will very likely go into, or continue with, the caucus, which might be aptly described as a type of shuttle diplomacy.
At the outset, the parties often paint a picture that is most sympathetic to their position. The mediator will expect that. However, you should expect the mediator to ask you many questions about the facts and relevant legal issues that exist in your case—both to make sure that she understands fully what the dispute is about and to require you, with her assistance, to probe, discover and confront the strengths and weaknesses of your case, and to appreciate the strengths of the other side’s case. It pays to be open and honest with the mediator in caucus and engage in that dialogue. After all, while the mediator cannot disclose what you have told her in the caucus without your express approval, this dialogue—and it may take a while to get there—will allow the mediator to assist the parties’ move towards a settlement that is reasonably acceptable to all of them.
As the mediator engages in “reality testing,” she will lead the parties to not only appreciate the strengths and weaknesses of their case and the other party’s case, but to appreciate the cost, and potential risks and rewards, of not settling. As this goes on, during the day or days of the mediation, it is very often the case that the gap between the parties will narrow and the possibility, scope and the range of a settlement will become apparent.
I encourage you to read my previous articles to further explore this topic:
Contact me today with questions or comments.
