The Mediation Process

The purpose of mediation is to bring the parties and their attorneys together in an effort to accomplish a compromised settlement of a particular dispute so as to avoid the rigors of litigation. As everyone knows, litigation is extremely time-consuming, expensive, and stressful for the parties and their attorneys. Perhaps the worst part of litigation is that it is completely unpredictable in terms of both its duration and its end result.

As parties and attorneys, it can be difficult to know how long litigation will last, how much it is going to cost us, and what the result of a jury trial will be. That is why smart lawyers and smart insurance representatives have decided that it is worthwhile to get off the litigation track for one day and hire a private mediator to see if he or she can assist the parties in their negotiations to accomplish a compromised settlement.

The role of the mediator is to provide a forum by which the parties and their attorneys can discuss all the facts and the issues of the case in an open forum, and then assist the parties and the attorneys in their negotiations during private caucuses. Everything that transpires at the mediation is subject to confidentiality. That means that whatever the parties and their attorneys and claims representatives say at the mediation will be held strictly confidential by the mediator, and will never be repeated to the Judge or a jury or anyone else who is not participating in the mediation. Moreover, whatever information is shared with the mediator

Although it is essential to the mediation process to have a good mediator, the most important factor in a successful mediation is the attitude of the parties. In order for a mediation to be successful, the parties must come to the mediation with the idea that both sides must compromise in order to achieve a settlement. Compromise from both sides is a necessary ingredient to accomplishing any settlement. In its simplest form, compromise means a Defendant’s willingness to pay more than he or she wanted and a Plaintiff’s willingness to accept less than he or she wanted. If either side to the litigation comes to the mediation with the idea of victory, as opposed to compromise, the mediation will fail regardless of the mediator’s best efforts in private caucuses will not be relayed to that party’s opponent. Hopefully, the confidentiality of the private caucuses between each party and the mediator helps to eliminate or reduce the posturing which is oftentimes the phenomena that stalemates negotiations.

Qualities to look for in a good Mediator

The job duties of the mediator at the mediation are extremely difficult and stressful. In order for the mediation to be successful, your mediator must have the following qualities:

• The first and foremost quality of a good mediator is to have a relentless work ethic. Sometimes, cases that seem hopeless at the beginning can ultimately settled by the end of the day, if the mediator has the work ethic to push through. By being persistent and with gentle pushing and prodding through what might seem like a seemingly stalemated negotiation process, a good mediator can be successful.
• A good mediator must establish trustworthiness with the parties and the attorneys and the insurance representatives so that the parties can convey their settlement posture to the mediator without fear of revelation to the other side.
• A good mediator must be diplomatic, especially in very serious injury and death cases which involve very sad and sensitive issues.
• A good mediator must establish credibility with the parties and their attorneys. Credibility is established by exuding sincerity, honesty, and integrity, and by having the knowledge and experience in the subject matter that allows the parties and the attorneys to look upon the mediator with credence.
• A good mediator must be objective and impartial and unbiased. Having represented both Plaintiffs and Defendants in the personal injury arena enhances the mediator’s ability to be objective and impartial.
• A good mediator must be a good listener, and he or she must have the patience to allow both the parties and their attorneys and their claims representatives to present their case. Oftentimes, persons who have been victimized by injuries or deaths of a loved one have a great need to vent their frustration, and a good mediator must be patient in allowing that venting but at the same time, keeping it from sabotaging the mediation process.
• It helps greatly if your mediator is experienced both as a mediator and experienced as a lawyer in the subject matter of the particular litigation that is being mediated. There are numerous nuances that surface at mediation that simply cannot be handled by someone who is inexperienced either as a mediator or as a litigator.
• A good mediator must have the ability to control the proceedings. Mediations are often emotionally charged, especially in cases involving serious injuries and death claims. Also, the adversarial nature of our practice oftentimes leads to heated disagreements which must be controlled by the mediator in order to have a successful mediation.
• It is often times important for a good mediator to be persuasive in a diplomatic way. There are a multitude of ways of breaking through stone walls and stalemates which many times require the power of gentle persuasion.
• A good mediator should also have extensive experience negotiating his or her own cases as a plaintiff’s lawyer, a defense lawyer, or a claims representative. Although the mediator is not one of the parties who are actually doing the negotiations at the mediation, if he or she does not have experience as a good negotiator in his or her own cases, he or she will have a difficult time understanding the process and wading through the posturing which is characteristic of almost all negotiations.