Most clients are unaware of what mediation means and the opportunities and shortfalls. Unlike taking a case before a judge or private judge of the facts (arbitration), mediation is a voluntary process with the goal of reaching a settlement of a dispute and avoiding litigation. Here are a few things to consider:
- Is Mediation the right choice? – Typically, the answer is yes. Even if the parties are far apart and not even on speaking terms, a good mediator can bridge the differences and personalities and bring the parties together.
- How does mediation work? – Nothing mystical here! The parties get together in one room with the mediator and their lawyers. The attorneys present a BRIEF summary of the case so the other side is aware of the claims and arguments. After this is done, the mediator says a few words then divides the parties up by assigning a separate room to each side. The mediator then goes back and forth attempting to broker a deal.
- Am I forced to accept a settlement? – NEVER! No one – particularly the mediator can tell you what is acceptable. You choose what’s best for you and your company.
- Can I record the conversations? – NO – NO – NO! Everything discussed between the two parties is confidential and can never be disclosed. This features encourages an open and honest dialogue.
- Do I have to talk to my enemy? – I don’t even want to look at him/her/it! – You’re good to go. You don’t have to say a word or trade glances. Let the attorney and mediator handle those communications.
- Will the Mediator tell me her opinion? – Yup –if she does it correctly. The mediator should give you a good idea of the strengths and weakness of your case so you know how to bargain and negotiate.
- Who makes the first offer? – This trips a lot of folks up. I don’t think it matters. But if you put out the first offer – over inflate as it can only go down!
- What about horse trading? – You betya! Everything is on the table. The key is to be reasonable or the effort and dollars in mediation will be wasted.
- How do I choose a mediator? – Critical. I always recommend going with a former judge as they have a way to tell each side the way it really is. The client needs to hear the strength or weakness of their case from an objective party. The truth will set you free or at least allow you to consider lowering or raising your settlement number.
- Is a deal enforceable? – Absolutely. Has the same effect as a court order.
The bottom line – Mediation is almost always a good idea. If you can exit the litigation vehicle with minimal expense and an acceptable return – consider yourself a winner!