Mediation - An Alternative To Litigation & Trial

John D. Winer, San Francisco

A. Mediations Are Favored in California.

Mediation is an important aspect of Alternative Dispute Resolution (ADR).

The California legislature and the courts in California greatly favor mediation and other forms of ADR because they help to unclog the courts.

B. What Is Mediation?

Mediation in personal injury, employment, abuse, harassment or other civil cases is a process by which the parties (the plaintiffs and defendants in a lawsuit) come together in one place for anywhere from a few hours to several days to attempt to resolve their differences without expending further time, energy and money on litigation and/or trial.

C. Where Do Mediations Take Place?

Mediations generally take place in the offices of one of the mediation service providers; however, they can also take place in conference rooms, law offices or just about anywhere that the parties agree to spend some time trying to resolve their differences.

D. When Is a Case Ready For Mediation?

Although in the past, some courts have, and some still do, mandate early mediation in cases, it has been found to be generally useless to attempt to mediate a case until all sides are ready. A mediation can only resolve a case if all sides participate enthusiastically and, therefore, unless mandated by the courts, most experienced attorneys wait until the case is ready for settlement and all sides agree that the case is ready for settlement and decide to mediate.

E. Choosing a Mediator.

Mediators are generally attorneys or retired judges. They are paid by the parties and usually the expense of the mediation is split evenly, although there are some occasions in which the defendant or insurance company agrees to pay for the entire mediation.

Most mediators spend a substantial portion of their time (or their entire time) mediating cases. For their mediation practice to be successful, they have to earn a reputation for fairness and persuasiveness. Thus, good mediators tend to be respected by all sides in a case and are especially skilled at settling disputes.

Which mediator to choose in a case will usually depend on the nature of the case and the nature of the parties to the litigation. There are some mediators, for instance, who are especially skilled at piecing together settlements when there are multiple defendants in a case. Other mediators may be more sensitive to the emotional needs of a plaintiff in a sexual harassment or psychotherapist abuse case.

Some mediators may have expertise in a particular subject matter of litigation such as construction accidents, sexual harassment, medical malpractice, aviation or motor vehicle cases.

Most experienced attorneys are able eventually to agree on a mediator although sometimes several names have to be passed back and forth before there is an agreement. One of the great aspects of mediation is that in private mediations, the parties get to choose a mediator.

F. The Mediation Brief.

Generally speaking, attorneys for each side prepare a brief for the mediator, summarizing the case. Mediation briefs can be anywhere from five to 100 pages or more long, and they vary depending upon the complexity of the case and style of the attorney.

Usually each side also provides the other side(s) with a copy of the brief. Plaintiffs almost always provide the other side with a copy of their brief because they want it to be reviewed by the insurance company and/or corporate defendant who will be determining the amount of money to be paid in the case; however, some attorneys choose to keep their briefs confidential and provide them only to the mediator. This is allowed. Most good attorneys write thorough, persuasive mediation briefs.

G. The Opening Session.

Most mediations begin with a meeting around a large conference room table with the mediator, the parties, their attorneys, insurance adjusters and, if appropriate, representatives of a defendant corporation present. The mediator then explains the nature of the mediation and his or her attitude about mediation, settlement and what to expect during the course of the day. The mediator will make it clear that he or she is not the decision maker, it is the parties who, with the advice of their attorneys, make decisions.

The mediator will explain that the mediation is confidential and the mediator will have everyone in the room sign a confidentiality agreement. This means nothing that is said in a mediation can later be used outside of the mediation for any purpose whatsoever. The thought is that this helps promote honest, open discourse and less posturing.

In the usual format, each side will have an opportunity to present their case orally in a summary form to start the mediation. The parties themselves, and insurance adjusters, will have an opportunity to speak if they choose. The idea behind this arrangement is that this will be the only opportunity in a case in which everybody will be face to face and will be able to at least hear, if not agree with, the point of view of the other side. The job of the mediator is to help defuse the natural tension between the parties and help the parties focus on resolution rather than provocation.

In some highly charged cases, such as sexual harassment, sexual abuse or psychotherapist abuse, this process of an opening session may be skipped so that the parties do not have to be in the same room with each other, or separate opening sessions can be held in front of each party.

H. Private Caucuses.

After the opening session, the parties break up into separate rooms and the mediator spends the rest of the day going from room to room having private conversations with each side. The mediator will agree to keep confidential anything which one side wants to remain confidential; however, the mediator will often ask one side to allow the mediator to convey information to the other party under the belief that the more each side knows about the other's case, the more likely they will be able to evaluate it accurately and reach a settlement.

Mediators vary vastly in style and the way that they handle the private caucuses, but usually they will try to point out privately to each side the weakness of their case and the strength of the case of the other side, while acknowledging the positive aspects of the case of the side with whom they are meeting.

They will also point out the value of settling a case rather than the uncertainty of litigation or trial.

At some point, sometimes quickly and sometimes very slowly, the mediator begins to ask each side to lower their demands and raise their offers of money so that the parties can move towards closure.

I. How Long Does a Mediation Last?

Sometimes it becomes clear very early that the parties are too far apart and not willing to move close enough together to achieve a settlement. In this case, the mediation is usually terminated and sometimes there is an agreement to return after more work is done on the case.

Other times, the mediation might have to be continued for a short period of time for a corporation or insurance company to obtain additional monetary authority to settle the case.

Usually, mediations are successful and by the end of the day, sometimes very late into the night, an agreement is reached.

J. The Settlement Agreement.

There will usually be a written settlement agreement created at the time of settlement in the mediation. Each party will sign the settlement agreement and at that point, there is a settlement that is actually enforceable in a court of law if any party tries to back out.

An important aspect of mediation is that non-monetary terms can be negotiated and added to a settlement agreement. For instance, frequently the defendants in a case will ask for confidentiality as part of the settlement. Or, in an employment case, plaintiffs will ask the defendant to provide the plaintiff with a good letter of reference. There is no limit to the amount of non-monetary terms that can become part of a mediated settlement.

K. When a Case Can Be Mediated.

A case can be mediated at any time during the course of the litigation or, actually, even before a legal complaint is filed. Early mediations can sometimes be productive, especially if there exists a clear liability case in which the corporation or individual defendant wants to avoid the publicity or embarrassment of a lawsuit.

Some companies have a policy of attempting to mediate employment disputes early; however, rarely do these type of mediations end up with large settlements although there are always exceptions. A mediation can occur as late in the process as during the middle of a trial or even after a trial while the case is on appeal.

This article was authored by John D. Winer. Winer, McKenna & Burritt, LLP
specializes in catastrophic physical, psychological injury cases and wrongful death cases. The firm handles a significant number of catastrophic injury, traumatic brain injury, elder abuse, sexual abuse and harassment, post traumatic stress disorder and psychotherapist abuse cases. Please visit JohnWiner.com for more information or for a free online consultation.