By: Rick Davis
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What is Mediation?
A mediation is an informal meeting with a third party to see if a settlement can be reached. How it generally works is that we will usually start with all of the parties in the same room so that the mediator can go over the terms of the mediation and some basic ground rules. The mediator may also ask some basic questions regarding the facts of the case or each party’s position. The parties will then be placed into separate rooms. The mediator will go between the rooms and talk with the parties regarding the various facts of the case and possible settlement offers. The mediator will generally point out the strengths and weaknesses of the parties cases but will generally focus on the weakness as it is the mediator’s job to get the parties to settle. Therefore, when it feels like the mediator is being overly critical of your case, please know he or she is doing the same thing in the other room.
Before leaving the room, the mediator will get a settlement offer to be relayed to the other party. The parties have complete control over any settlement offers, and while the mediator and the parties attorneys may provide advice based upon what they think might be reasonable and/or what might be accepted by the other party, it is entirely the client’s call on what to offer or accept during a mediation.
All conversations that occur during mediation are confidential. The mediator will only relay information that you allow him or her to share and nothing the parties say can be used at trial. Therefore, the parties should feel comfortable talking honestly about your case during the mediation.
Historically, a high percentage of cases settle at mediation. With that being said, as neither party is required to accept any settlement offers or recommendations of the mediator, it is possible that nothing is resolved during the mediation. In order to increase the possibility of settlement, the parties should come to the mediation with an open mind as to what the parties might accept as a settlement to avoid the continued cost and uncertainty of litigation. Please keep in mind that in mediation neither side will walk away with everything they want. On the other hand, it is a great opportunity to find a resolution to a dispute so as to move forward with the other aspects of your business or life. This piece of mind can be extremely valuable.
If a settlement is reached, the mediator or attorneys will usually draft a short settlement agreement (generally very informal) to outline the terms of the settlement and make it binding on both parties. This ensures that the matter is fully resolved when the parties walk away from the mediation. With that being said it is rare for money to be exchanged at mediation as usually time is provided to obtain checks and make payment. With that being said, the timing of payment is a point that can be negotiated in mediation If either party does not honor the terms of a settlement reached during mediation, the other party can file a motion with the court to enforce the settlement. Generally speaking, if a party is required to do so, that party will be awarded the attorney fees associated with enforcing the settlement agreement.