Mediation: How It Works

Mediation can be employed at any stage of a civil dispute. It can occur before or after a lawsuit is filed. Our experience at this firm has typically been that mediation occurs after a lawsuit is filed and after the parties have become well acquainted with the strengths and weaknesses of both sides of the dispute. Once the parties have access to all the operative and materials facts via written discovery and depositions, it is not uncommon for one party to suggest a mediation of the dispute.
Once mediation is agreed upon, a third party neutral or mediator is selected to preside over the mediation session. The third party neutral is typically an experienced attorney or judge who has experience with the type of dispute at issue. Whether the case involves medical malpractice, products liability, wrongful death, a tractor-trailer accident or other personal injury claim, typically, one tries to select a mediator who has extensive experience in such a case. The parties then appear jointly at a prearranged mediation conference after which time the mediator takes over as a presiding third party neutral.
The role of the mediator at the mediation conference is to facilitate settlement negotiations. The mediator typically listens to both sides summarize their respective contentions and then the mediator meets privately with each side trying to get one side to make an offer and the other side to make a counteroffer thereto. During the negotiation process the mediator probes the weaknesses and strengths of each side and encourages both sides to be open minded always agreeing to compromise their respective positions. Any successful mediator or third party neutral tell both sides that in order for a settlement to occur both sides have to negotiate in good faith and have to agree to compromise, that is accept less than what they would ideally want but nonetheless try to reach a good faith compromise agreement to resolve the dispute.
Typically, at our firm, as long as the mediator is qualified, we allow the defense to select whom ever they wish. Our logic is that if the defense selects a mediator, by definition, they must have confidence in his or her abilities to evaluate a claim. We always agree to whomever the defense selects because we are confident that we can convince a neutral third party mediator of the strength of our case and thus, if they accept our position, they will be able to successfully advocate to the other side who selected them that they should reconsider their position and increase their settlement offer.
Some mediators are better than others either due to experience and/or personality. When an experienced mediator gets involved in the process, we have found that between 80 to 90 percent of the time a case does settle at mediation. This is a very good track record which indicates that when both sides have access to all of the material facts that are needed to evaluate a claim and when both sides are assisted by a third party neutral, the chances of a successful settlement are good.

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