Informal and non adversarial, the non-binding procedures of mediation consist of parties agreeing upon an impartial mediator to hear the relevant facts of a dispute and the position of each party.
Mediators are trained and experienced in assisting parties to reach their own negotiated dispute resolution. Approximately 90 percent of the disputes submitted to mediation reach settlement and avoid further litigation.
What to Expect Before the Mediation:
WRITTEN SUMMARY. Before a mediation convenes, most mediators request a brief written summary of the case from each party. In personal injury cases, the summary should discuss the issues of liability, focusing on the key evidence in support of the parties’ position, and on damages, discussing for example, such issues as the extent of disability, casual relationship, and the extent of special damages or economic loss. If the issues of liability or damages can be best highlighted by attaching pertinent portions of medical records, statements, or other documents, you may wish to do so in advance of the mediation to assist the mediator.
PREPARATION. Be prepared; carefully review your case before the mediation. Although mediation is informal, be prepared to discuss the facts of your case in detail. Identify and pull out all documents, or portions thereof, that may be helpful to show the mediator so as to avoid wasting time at the mediation by having to pull through a large file. Spend time with your client preparing him for the mediation. Determine who will speak and encourage the client to come with an open mind. Discuss in general terms what settlement options they feel may be acceptable to them if they became available at the session.
KNOW THE MEDIATOR. Spend some time finding out about your mediator and his or her background and experience. Discuss with your co-workers or references provided by the mediator as to how the mediator generally conducts his mediations.
THE PARTIES TO THE DISPUTE MUST ATTEND. Research shows that where the plaintiff, the defendant and/or any insurance representative or any individual with needed full settlement authority appear at the mediation, the chances of settlement increase dramatically. Be sure the opposing party, and not just their attorney or other representative, are going to attend the mediation. In the rare circumstance where the party is unable to attend, their representative should advise all parties of this before the mediation. At times, due to geography or other circumstances, a party or person whose authority is needed to settle the case may be unavailable. In such cases, with the assent of all parties, they may be able to participate by telephone or video conferencing during the course of the mediation session.
What to Expect at the Mediation:
JOINT SESSION. At the start of the mediation session, most mediators bring all the parties, their counsel and/or representatives together in a large conference room for a joint session. The mediator generally will describe the process he intends to follow, and should emphasize his impartiality and that all communications made at the mediation are confidential. The parties, or their attorneys or authorized representatives, are given an opportunity, in an uninterrupted manner, to explain the facts and key issues in the case from their standpoint and also may state where the parties are in terms of any settlement discussion that may have taken place before the mediation. At times it may be advisable however, to reserve settlement discussions until in private caucus with the mediator, and a skillful mediator may in some cases encourage the parties to do so.
PRIVATE CAUCUSES. Often after a joint session, the mediator will have private caucuses (meetings) with each party to explore their position and flexibility for settlement. These private caucuses are also confidential, and as such, the parties may find it easier or more appropriate to discuss certain issues and/or their willingness to show flexibility in these private sessions. These private discussions should be kept in confidence by the mediator, and only those proposals that a party specifically authorizes a mediator to share with the opposing party should be divulged by the mediator. Parties to a mediation should insist that the mediator pledge that these discussions in private caucus will remain confidential. This confidential information is critical to the mediator since with this information in his mind he can begin to focus in on the true needs of the parties and possible terms or proposals for settlement.
TOOLS OF THE MEDIATOR. Mediators are trained to deal with many issues likely to arise at a mediation, including intense emotions, lack of trust, and communication failures. A skilled mediator, particularly in private sessions, is likely to discuss with each party the realities and alternatives facing them, for example, if they decide to go to trial, what the chances are of a verdict in their favor, what is a likely award, how long it would take to get to trial, and how much it would cost financially and emotionally to go through trial. Mediators may wish to focus the party on what weaknesses they may have in their case. Some parties are resistant to hearing such messages, even from their attorneys, and may have overly optimistic assessments of what a trial may result in should they decide not to accept settlement. The mediator can be effective, as an impartial and experienced neutral, in dealing with such unwarranted optimism.
Many skilled mediators will avoid indicating their opinion about the merits or value of the case, particularly early on in the mediation session, which distinguishes a mediation from a case evaluation or arbitration. Rather, mediators are experts in the process of settling the dispute. However, a good mediator will often make suggestions to the parties and, as the session proceeds, may raise settlement suggestions, most often in private caucuses, i.e., “What would your response be if the defendant expressed willingness to pay $5,000.00 and dismiss their counterclaim?”
CONFIDENTIALITY. The parties should be sure that the written mediation agreement contains a confidentiality clause, wherein the parties and the mediator agree that any communication made during the course of the mediation relating to the subject matter being mediated shall be a confidential communication and not be subject to disclosure in any subsequent judicial or administrative proceeding. This is to assure that if the case does not settle, their statements, offers, demands or other negotiations are not disclosed to a judge, jury, or arbitrator.
The Massachusetts Confidentiality Statute, M.G.L. ch. 233, s. 23C provides that documents exchanged in connection with a mediation and the substance of discussions in a mediation are not “subject to disclosure” in any judicial or administrative proceeding. However the protection of the statute only applies if the mediator has satisfied certain requirements of training and experience. Further, the statute has been little used or interpreted by the Courts, so that parties are well advised to embody their confidentiality agreement in a written mediation agreement.
SETTLEMENT OR OTHER ADR ALTERNATIVES. If settlement is reached at a mediation session, it is advisable to sign settlement agreements and/or written releases while all parties are present at the mediation. Although mediation is often referred to as “non binding”, an agreement reached in a mediation is as binding and enforceable as any other agreement. Statistics show that the vast majority of cases (approximately 85% to 90%) submitted to mediation reach settlement. If settlement is not reached but progress has been made, it may be suggested that the parties return again for a second mediation. In many cases where the differences of the parties have been significantly narrowed but settlement not reached, arbitration then is selected by the parties to reach a final resolution. The parties then may wish to take advantage of the progress made in mediation by agreeing to submit the dispute to binding high-low arbitration, setting a minimum and maximum award, for example, perhaps at or near where their negotiations reached an impasse.