A Mediation Primer

 A excerpt from  A New Day in Court by John Miles

Many readers of this primer are already familiar with mediation. Perhaps you are a mediator. Perhaps you have mediated at Miles Mediation and could write this primer better than I. Should you resemble either of the above, please feel free to skip to the

Even the most cursory consideration of A New Day in Court provides the reader with one insight about the author. I am an unabashed movie fan. In the movie Philadelphia, Denzel Wash- ington says, “Explain it like I’m a fifth grader.”

This primer explains the nuts and bolts of mediation.

What?

Mediation is a process that enables parties to resolve disputes. Customarily used in legal disputes, mediation is a cost- effective alternative to trial by jury. In recent years, mediation has become the preferred method for resolving lawsuits.

Following are some of the identifying characteristics of typical mediation:

  1. Mediation is a voluntary process. Resolution requires that both parties agree to the terms of the settlement.
  2. A mediator facilitates the process, guiding adversaries through a discussion of the issues in an effort to find areas of agree- ment.
  3. While mediators are not required to have a law degree, most mediators are attorneys. Legal disputes require that mediators have a knowledge of the law and an understanding of jury tendencies.

Arbitration, on the other hand, is a process where parties contractually agree to submit their case to an arbitrator or panel of arbitrators—to be bound by the arbitrator’s decision.

Who?

Most mediation involves personal injury disputes. In addi- tion to a mediator, these cases typically involve a party who has been injured in an automobile accident or a slip-and-fall (claimant or plaintiff) and the party or company that is alleged to have caused the injury (defendant). An attorney almost always represents the injured party. Insurance policies provide the defendant with coverage (up to the insurance policy limits) for any judgment or settlement and an attorney. While the insur- ance company pays the attorney, the attorney is ethically bound to represent the interests of the defendant. Also present in most mediations is an insurance claims adjuster (see Diagram A).

In the past, defense attorneys were members of private law firms that represented a number of different insurance compa- nies. In recent years, most insurance companies have created in-house legal firms, employed directly by the insurance company. These in-house attorneys owe the same representation to the defendant as does outside counsel.

The insurance claims adjuster is the person who has handled and evaluated the case for the insurance company. The insur- ance company will pay any settlement up to the policy limit. In addition, most insurance policies are written to give the insur- ance company the ultimate settlement decision.

Because the defendant’s assets usually are not at risk, the defendant is not present at most mediations; the defendant’s attorney is, however, present. The exception to this rule would be in cases involving punitive damages. (Punitive damages are damages designed to punish a defendant, to dissuade the defen- dant from a repeated offense.) If the accident were the result of a defendant who was under the influence of drugs or alcohol, the defendant’s attendance can prove to be helpful should the defendant be able to apologize to the plaintiff.

Why?

Disputes arrive at mediation for one of two possible reasons:

1. The parties can agree to participate in mediation.

Most mediation at Miles is voluntary. (Attorneys who have mediated at Miles realize the value of mediation where more than 80 percent of the cases settle.)

2. The court can order parties to mediation.

Judges order mediation: mediations can be facilitated by court approved mediators or by private mediation company mediators. (Miles mediates a significant number of court- ordered cases.)

Where?

Mediation sessions can take place at a courthouse, law office, or private mediation center. The sessions require a conference room for the opening session and breakout rooms for private caucus sessions.

Judges have discovered that mediation is an effective way to reduce the size of their trial calendars, which have increased dramatically in recent years. Most counties have established court- connected mediation programs. These programs include mediators who have been approved to mediate for the county. A mediation director administers the program, ensuring that court-ordered cases are mediated. Most directors prefer that the parties mediate with a court-approved mediator. These mediations are usually conducted at the courthouse.

Directors do not object to private-company mediations, provided the case is mediated within the judge’s prescribed time. In addition to preferred court-approved mediators, private companies can offer a comfortable and relaxing environment. Miles Mediation provides a café as well as a large common area.

When?

The claimant and the defendant, or legal representative of, will receive a mediation notice advising the parties of the mediation date, time, location, and mediator .

A typical mediation session begins in the morning and ends the same day.

How?

At the outset of the mediation, each party meets privately with the mediator, who presents a brief overview of the process. Following these individual meetings, all participants proceed to an opening session that takes place in a conference room. The first order of business is for each party to execute an agreement to mediate which explains the process and commits each party to negotiate in good faith. The agreement also binds the parties to keep the proceedings confidential. Nothing said during the

mediation can be repeated at trial, in the event the case does not settle. Confidentiality is critical in order to enable the open communication necessary to facilitate resolution .

Opening remarks are the next order of business. The medi- ator gives additional information regarding the process and the value of resolution. At the conclusion of the opening remarks, the parties have the opportunity to make their opening state- ments. Typically, the attorneys speak on behalf of their clients. (Later in the book, I present evidence to prove the advantage of allowing the parties to speak as well.)

Following the opening session, the parties retire to their private caucus rooms. The mediator meets with each party to discuss the strengths and weaknesses of the case. The caucusing portion of the mediation constitutes the lion’s share of the process as the mediator goes from room to room in an attempt to bring the parties closer and closer together. The mediator asks each party to adjust its monetary demand—the plaintiff to reduce his demand, the defendant to increase her offer. The process continues until the parties reach settlement or impasse.

A New Day in Court addresses the mediation techniques used successfully to facilitate resolution. Mediation affords most parties, particularly those who have received injury at the hands of others, the best process for finding closure and peace.

On the rare occasion when the parties are not able to settle, the mediator declares an impasse, which terminates the media- tion. The mediator often stays in contact with the parties and settles the case at a later date.

When the parties reach a settlement, the mediator drafts a settlement memorandum. This memorandum contains the amount and the essential elements of the settlement. The insurance claims adjuster authorizes the settlement check and forwards the check to the defense counsel. Defense counsel prepares the appropriate settlement documents—typically a release and dismissal—and forwards those along with the settle- ment check to the plaintiff’s counsel. The plaintiff’s counsel meets with the plaintiff; the settlement documents are executed and the funds are disbursed. This process is usually accom- plished within a week to ten days following the mediation.