What is Mediation in the Legal World?

Originally published by hsjustice.

What is Mediation?

Mediation is a method of alternative dispute resolution (ADR) aimed at settling a case before it goes to trial.  During a mediation, the parties to the dispute come together to attempt to reach a deal. Mediation often utilizes a collaborative approach and encourages parties to work together during the process.

The mediation is led by a neutral third party who oversees the process, and attempts to ensure all of the parties involved are working together to resolve the dispute. The mediator has usually received training in negotiations, and often mediators have spent time practicing law prior to becoming a mediator.

How does the Mediation Process Work?

The mediation often begins with a general statement from the mediator about the goals of the mediation process. All of the parties will meet in one room (typically at the mediator’s office) and are free to ask questions before the mediation begins. That being said, the opposing side is not allowed to “question” the plaintiff and vice versa.

Next, each of the parties (or their legal representatives) is free to make an opening statement about what is important to them, or what issues they hope to resolve during the mediation process.

At this point, the mediation may continue as a joint mediation or the parties may separate into different rooms.  Almost all the time, parties separate into different rooms.

During this process, the mediator can meet with the parties separately to help the parties reach a deal. The parties meet with the mediator individually to discuss the strengths and weaknesses of their case. They also discuss their ideas of settlement. The parties meet together to hash out their differences and participate in direct negotiation.   This is rare in a personal injury and employment case.

Once separated, the mediation begins.  If settlement discussions occurred prior to mediation, the party who did not make the last move begins.  Otherwise, the plaintiff begins.

Generally speaking, the parties go back and forth with offers and demands until hopefully a settlement begins.  We half-joke with our clients that we will start at eleventy billion dollars and the defense will start at $1 and will meet somewhere in the middle.

If the parties do not reach a settlement during their initial meeting, the parties are free to resume negotiation later. This negotiation can also occur over the phone.

In the event that the mediator believes that it is not possible for the parties to reach an agreement, the mediator may pull the plug on the mediation. Either party can also walk away from the mediation if they feel they will not be able to reach a settlement.

How long does Mediation Last?

The length of mediation depends on the complexity of the legal dispute involved. If the dispute is straightforward then the mediation will generally not last very long – usually a couple hours or half a day. However, if the dispute is complex the mediation can last several days.   Most personal injury and employment mediations last a half day or a day.

The length of the mediation will also depend on the attitudes of the parties involved. If one party is unwilling to make a compromise the mediation is likely to last longer, or shorter if it all blows up.

What information does the Mediator know about the case before Mediation?

The mediator often requests that the parties to the suit provide the mediator with information prior to the formal mediation meeting. This allows the mediator to familiarize himself or herself with the background of the case.

In the event that the parties do not provide the mediator with information prior to the case the mediator will often make it a point to ask each party to describe the important aspects of the case in their own words prior to beginning the mediation.

Mediators often want information about the case and the parties prospective because they want to be able to serve as a middleman during negotiations. One way that the mediator can effectively serve as a middleman is to familiarize themselves with each parties’ prospective about the case.

What happens if the parties reach a deal?

If parties are able to come to an agreement during a mediation the agreement, the parties will usually enter into a Rule 11 agreement. The Texas Rules of Civil procedure requires that all agreements be made in accordance to Rule 11 if the parties want the agreements to be binding.

These agreements can be oral or written. If the agreement is written, all of the parties must sign the agreement. The agreement can be typed or handwritten.

If the agreement is an oral agreement it must be stated in open court and made part of the official record of the case. The record must also reflect each parties assent to the oral agreement as it was read.

Often, during mediations the parties decide to opt for a written agreement.  This is the best idea. Once the agreement has been memorialized in writing the attorney for each side are responsible for reviewing the document. Each lawyer will suggest changes to the written agreement. After these changes are accepted or rejected the lawyers will present the agreement to their clients.

The clients will have a chance to read the agreement and ask questions about the terms of the agreement. After the clients have the opportunity to ask questions and read over the agreement they are asked to sign the agreement.

What happens if one of the parties decides to back out of the deal?

Cold feet about agreements made during mediation are common. What happens after a party decides to back out of a deal made during a mediation depends on whether the deal that the parties reached during mediation was binding.

Agreements that have been reached in mediation are binding if parties entered into a proper Rule 11 agreement.

If the parties’ previous agreement complied with the requirements of Rule 11, it is enforceable. If the parties did not comply with Rule 11 when they reached their agreement, it is not enforceable. If you want your mediation, agreement to be binding it is important that you comply with Rule 11 of the Texas Rules of Civil Procedure.

What happens if the parties do not reach a deal?

If the parties do not reach a deal, they have two main options. First, the parties can attempt to continue to mediate (or pursue other forms of ADR). Next, the parties can proceed to resolve their dispute in the courtroom.

The mediator will often provide candid advice about whether the parties should continue to utilize mediation to resolve their dispute, or if they should pursue other options.

A final option is a mediators proposal.  If the case does not resolve during the mediation process, the mediator may elect to write a “mediator’s proposal.”  In so doing, the mediator comes up with an amount he or she thinks the case should settle for.  Then, the mediator sends copies of the proposal to the lawyers for both sides.

The mediator provides a date and time by which the proposal must be signed and returned to him. If both sides sign and return the proposal by the deadline, the case is settled.  If one side signs and returns the proposal, but the other doesn’t the case is not resolved and the party who did not sign and return the proposal is not informed that the other side did.

This could provide greater bargaining power later should the facts of the signer’s case change for the better.

What are the advantages of mediation?

Mediation has several advantages over traditional litigation. These advantages are discussed in detail below:

Faster resolution

Lawsuits often take years to come to a complete resolution. Parties can continue litigating for years because litigation is a process, and a slow one at that. First, the plaintiff has to file a complaint, then the defendant files and answer. Parties then file various motions and start the discovery process. The court often has to hold hearings regarding discovery issues or issues based on motions that the parties have filed.

Parties then have to wait for a trial date and must attend various meetings regarding what evidence is admissible at trial. Although the actual trial may be short, the trial does not end the lawsuit because parties can file motions (JNOV) to change the verdict. Parties can also ask for remittitur or for a new trial. Parties can also appeal to a higher court.

This whole trial process shows how long litigation can take.  One of the benefits of mediation is that the parties can reach an agreement much sooner than they could if they used the court system. Some mediations that are very complicated can last several months, but even the longest mediations are shorter than most suits that are taken all the way through trial.

If you have been injured in an auto accident, you should consider whether mediation is the route you should take in order to receive compensation for your injuries. One of the reasons why mediation is attractive is that parties have peace of mind knowing that the dispute has been resolved and they do not have to wait years for the trial to end.

Confidential

Mediation is generally confidential. There are no transcripts or records of evidence that will later be discovered. The mediator will not discuss your case with the judge unless she is either communicating that an offer has been reached or requesting more time to pursue mediation.

Less formal

Some individuals may feel anxious about taking their case to trial. This anxiety is understandable. Often mediations take place in an office building. Parties are given breaks and time to talk to their attorneys in private. This setting allows some individuals to feel more comfortable than they would if they were in a courtroom.

Another advantage to mediation is that the mediator will generally not have power to impose a deal on the parties. This often leads to less anxiety among the parties because each party knows that they do not have to leave the mediation with a deal that they are unhappy with.

In addition, if mediation does not work the parties are free to pursue the issue in court through litigation. This freedom to seek resolution in court often put parties at ease during the mediation process.

Less expensive

As discussed above, the trial process is very long. This process often eats away at valuable resources. Mediation is often seen as an advantageous alternative to trial because it is less expensive than litigation.

Mediation may be less expensive even if a party settles a case for less than that party would have received at trial. This is because the party will not have to pay court costs and attorney’s fees for a long trial.

Preserves Relationships

Mediation encourages a collaborative approach. This means that parties spend less time arguing with each other and more time getting to the core of their dispute. The collaborative approach may be able to save relationships that could end if a long trial occurs.

What are Other Types of Alternative Dispute Resolution?

Below is a list different types of alternative dispute resolution:

• Arbitration
• Neutral Evaluation
• Conciliation
• Negotiation
• Settlement Conferences

If you have any questions or need help feel free to contact our office.

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