Mediation is a non-binding informal proceeding that employs a neutral third-party or “mediator” to assist parties in a legal dispute to attempt to negotiate a settlement. The mediator’s role is to keep the parties communicating and exploring settlement options with the end goal of avoiding trial.
Mediation may be a voluntary process or it may be court-ordered. The mediator has no authority to make any party settle the case. Any settlement must be agreed upon by all parties.
What to Expect at Mediation
The parties and their attorneys meet, typically at a neutral location such as the mediator’s office. In a personal injury case, often the defendant does not attend. Instead, there will often be an insurance claims adjuster or corporate risk manager present.
There are several tools a mediator may opt to use to further the mediation process: Opening, Private Caucus, Private Conferences, Bracketing and Mediator’s Proposals.
During the opening all of the parties are brought into one room with their attorneys and the mediator. The mediator will typically take the opportunity to welcome the parties, check to see that full authority to resolve the case is present and explain how he plans to proceed. Then, counsel for the party bringing the claim (plaintiff) is given an opportunity to give an opening statement. His role is to set forth a short presentation of the facts of the case from his client’s perspective and make a settlement demand. Then, the defense attorney will be given an opportunity to respond and present the facts from his client’s perspective. Plaintiff’s counsel is often given a chance to respond afterward.
During the opening, the plaintiff is not required to answer any questions. Typically, the plaintiff’s lawyer will advise the plaintiff not to answer any questions or speak freely.
After the opening, often the mediator will put each party and his/her respective attorney into a private room. The mediator then will speak privately with the attorney and client together. During these caucuses, the mediator will discuss strengths and weaknesses of the case and carry back and forth demands and offers of settlement. The attorney may choose to do all of the talking at times or may allow the client to speak more freely. Anything the attorney asks the mediator not to disclose to the other side must be held in strict confidence.
At times, the mediator may pull one or more of the lawyers out to talk in private. This can be for a number of reasons. It could be that the mediator senses an issue the client has that cannot be resolved through mediation. It may be that there is an issue between the attorneys that needs to be resolved such as payment of liens. It may be that the mediator feels something needs to be said directly by the lawyer to the other side. In any event, it is simply another tool in the mediator’s arsenal that she may use to try to get all the parties to reach an agreement.
Bracketing is a tool used by mediators to try and bring parties closer to a settlement when there is a large disparity between the demand and the offer. Essentially, the party proposes to move to a specified settlement number in exchange for the other party moving to a specific number. For example: the plaintiff may offer to lower their demand from $200,000 to $100,000 if the defendant agrees to raise their offer from $10,000 to $50,000. $100,000 and $50,000 are a bracket offer. The defendant may accept the bracket and counter as if $50,000 was his last demand, reject the bracket and propose a counter-bracket, or simply reject the bracket.
A mediator’s proposal is tool that a mediator may use to try to reach a settlement when the parties are unable to reach an agreement. When both parties reach a point where neither is willing to negotiate further, the mediator declares an impasse.
If the parties are agreeable to her doing a proposal, she will then select a number somewhere between the last offer and last demand and propose that the case settle for that amount. Each party is given a set amount of time to consider the number and respond “yes” or “no” to the mediator in confidence. If all parties respond “yes” then there is a settlement for the specified amount. If either party responds “no” then there is no settlement and any party responding “no” is not informed as to whether the other party said “yes” or “no” so as to preserve negotiation strength. The number the mediator choses is simply a number that the mediator thinks may be close enough that each party can live with it.
Orange County injury lawsuits can be settled a number of ways outside the courtroom. Mediation is only of a lawyer’s tools for resolving your case short of trial.