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 through the achievement of their own negotiated dispute resolution. Approximately 95% percent of the disputes submitted to mediation with MDRS reach settlement and avoid further litigation.
What to Expect Before 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 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 outline your case and prepare your mediator.
PREPARATION. Earnestly 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(s) preparing them for the mediation. Determine who will speak and encourage the client(s) 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 YOUR NEUTRAL. Review your mediator’s background and experience. Discuss with your colleagues or mediator-provided-references as to how the mediator generally conducts their sessions. This will promote your understanding of the mediator’s style and further establish the basis of a trustworthy relationship with your mediator as an ally.
ALL PARTIES TO THE DISPUTE MUST ATTEND. Research confirms that when the plaintiff, defendant, and all insurance representative or individual(s) with full settlement authority participate in the mediation, the chances of settlement increase dramatically. Be sure the opposing party, and not just their attorney or other representative, are committed to participate in the session. In circumstances where a party is unable to participate, it’s recommended that opposing parties are made aware in advance of the session.
What to Expect at Mediation:
JOINT SESSION. At the start of the mediation session, most neutrals bring all parties, their counsel, and/or representatives together in a large conference room for a joint session. If the session is being held online, the parties will typically commence in a shared online meeting room. The mediator will typically describe the process they intend to follow, and should emphasize their impartiality as well as that all communications made at the mediation are confidential. The parties, or their attorneys/authorized representatives, are given an opportunity to explain the facts and key issues in the case from their standpoint in an uninterrupted manner, and also may state where the parties are in terms of any settlement discussion that may have taken place prior to the session. At times it may be advisable, however, to reserve settlement discussions until in private caucus with the mediator; a skilled neutral may encourage the parties to follow this procedure in some cases.
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 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 during private caucuses. Discussions in private caucus should be kept in confidence by the mediator, and only those proposals that a party specifically authorizes a neutral to share with the opposing party should be divulged. Parties to a mediation should insist that the mediator pledge that discussions in private caucus will remain confidential. This confidential information is critical to the neutral since they can then begin to focus on the true needs of the parties and possible terms or proposals for settlement utilizing the information.
TOOLS OF THE MEDIATOR. Mediators are trained to deal with many issues likely to arise at a session, including intense emotions, lack of trust, and communication failures. A skilled neutral, particularly in private sessions, is likely to discuss with each party the realities and alternatives facing them.
Some examples of these include:
~ if the parties decide to go to trial, what the chances of a verdict in their favor are;
~ what a likely award could be;
~ how long it could take to get to trial;
~ how much it could cost financially and emotionally to go through a trial.
Mediators may wish to focus the party on weaknesses they may have in their case. Some parties are resistant to hearing such messages, even from their attorney(s), and may have overly optimistic assessments of what a trial may result in should they decide not to accept settlement options. The mediator can be effective, as an impartial and experienced neutral, in dealing with 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. A good mediator might, however, 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 $50,000.00 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 subject to disclosure in any subsequent judicial or administrative proceeding. This is to assure that if the case does not settle, 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 confidentiality clauses in a written mediation agreement.
SETTLEMENT OR OTHER DR ALTERNATIVES. If settlement is reached at a mediation, it is advisable to sign settlement agreements and/or written releases while all parties remain present at the session, whether that be in-person or online, using video conferencing or other software applications. 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 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 session. 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.
Read more in our DR User’s Guide