What Is Mediation
Did you know that something like 95 percent of cases filed in Court end in a pre-trial settlement?
Judges don’t want to see you. It isn’t personal, they are just too busy to go through every possible motion and hear every possible hearing.
Once in court, consider each of the following items to be $2k a pop: there is the filing of a complaint with payment of fees; a pretrial conference where the judge decides the pace of the rest of the process; initial disclosures; discovery including interrogatories, subpoenas, requests for production, and informal requests for relevant information; exchange of exhibits; exchange of witness lists; understanding and integrating all of the information into your case; motions; case evaluation; court-mandated mediation; motions in limine; a pre-trial brief; preparing for trial; and then the trial itself.
Note that courts will almost always mandate mediation. Nothing against you or your case, they just don’t want to see you and hope against hope that you settle out of court.
Multiply this by 2 parties, add in the cost of court administrators and the Judge’s wage, add in $5,000 per expert witness, the time you’ll spend away from your kids and job, and you might get a sense of how much an argument with your neighbor can really cost, even when the argument is completely justified.
Mediation is one of the most successful ways to avoid a good portion of the cost and headache of litigation.
Mediation, or “facilitated mediation”, is the process of settling a dispute in front of someone who is trained to help parties reach an agreement. A mediator can help find common ground, and can cajole or gently push people into reaching an agreement, but the magic of mediation is that the parties do almost all the work by themselves.
When people show up to a mediation, they have already signaled that they are willing to compromise, and our self-identities, social norms, and activated cognitive dissonance as humans make it difficult to see ourselves as the thing getting in the way of a peace deal. This means that people who show up to mediation are already primed to settle.
And if the parties are primed to settle, then this in turn means that mediation has a strong track record of settling cases without going to trial.
What to Expect from Your Mediation Appointment
This is what mediation will look like:
First, the mediator will thank the parties for agreeing to mediate, and introduces themself and asks the parties and their attorneys to introduce themselves. At this point, the mediator will let everyone know that as far as the Court is concerned, showing up for the mediation was enough. If everyone stood up and walked away right now, the mediator would consider the mediation concluded without an agreement, no penalty from the mediator (except a charge for their time) or from the court.
Second, the mediator would introduce mediation and describe what it is. Mediation is a process of coming to an agreement that everyone can live with. The mediator is not there to give legal advice or evaluate evidence or be a judge, just to try to facilitate the parties coming to their own agreement. The mediator will impress on everyone that they can reach an agreement that no Court in the country could possibly craft better than the parties. Sometimes people apologize to each other in mediation. Sometimes they enter into a new agreement to buy and sell a new product instead of fighting over this dead or dying contractual relationship they were fighting over. A court simply isn’t going to do that.
Third, the mediator discusses confidentiality, letting everyone know that the mediator cannot be called as a witness in Court, and that everything said in mediation is confidential with just a few exceptions pertaining to threats against safety.
Fourth, the mediator will invite each party to make a brief statement on the issues to be discussed in mediation. The mediator will write the issues down, and distill them into a few categories. The mediator will then show the writing to the parties and attempt to get agreement on the issues that need to be discussed during the session. The goal here is to get just a tiny little agreement from the parties as to what needs to be talked about. One secret of sales, negotiation, and mediation is that if you can get agreement on the small stuff, you can often logroll that agreement into the larger and more difficult issues.
Fifth, Once agreement is reached on the issues, the mediator will pick an issue to engage with the parties on. The mediator will ask probing questions of each party about the issue, to try to get an understanding of the issue and how the person feels about it. Often, people just need to be heard, and they need to express how hurt they are in front of the person who hurt them. Often the parties will be able to speak back and forth during this time, but the mediator will break things up into caucus – separating the parties into different rooms and then acting as go-between – if things get too heated. Actually, in most of the mediations I have been part of, the mediator calls a caucus almost immediately after agreement on the issues is reached. Mediators seem to fear the troubling feelings associated with conflict that a joint session can bring.
Sixth, during caucus, parties can more fully and confidentially express themselves, and a mediator will only bring information to the attention of the other side if a party agrees to release that information. As a go-between, the mediator attempts to cajole and gently push each party into the arms of the other party, so that there can be a meeting of the minds. Often, it takes an hour or so to get to the point where both don’t want to budge, even though they are within inches of each other.
Seventh, at that point, the mediator may ask attorneys to help their clients make a decision. The mediator’s biggest stick (whether with a carrot tied to it or used as a push) seems to be the cost of litigation, which can just climb and climb and climb.
Finally, If the parties finally agree, the mediator will write down the agreement, recite it for clarity, record agreement from the parties via video or with signature, and then thank the parties for agreeing to mediate. If there is no agreement, the mediator laments that they were not able to come to an agreement, offers their card if the parties want to have another go, thanks the parties for their candor and openness, and sends them on their way.
This is the process of mediation.
Drawbacks of mediation
II’ve never heard of mediation going awry, just some failures to reach agreement, but I have heard criticisms of it. One of the side effects of a Court that is focused on not actually hearing cases is that everyone, from attorneys to parties to administrators, is focused on compromise. If people are too quick to compromise, they might leave something on the table. However, they are gambling the certainty of a compromise they can live with for an uncertain result in front of a judge or jury that could ruin them, given the stakes.
The other critique of mediation has to do with the law. If too many cases settle, the law is less likely to develop. Courts can’t use unique fact patterns in cases to inform new understandings of the law and how it impacts people in their lives. Thus, mediation reduces the Court’s docket load, and allows parties to craft agreements that they can live with. Please don’t hesitate to reach out if you want to learn more about mediation.
The Big Picture
Mediation reduces the Court’s trial load, reduces the cost of going to court before trial, and allows parties to craft agreements that they can live with when a Court likely won’t give them what they want.
If you are interested in learning more about mediation, or working with trained mediator Andrew Mateskon, please do not hesitate to reach out at our contact page.
