Lawyers and litigants preparing for mediation must understand the goals of the mediation session to take full advantage of this popular settlement tool. An increasing number of federal and state civil cases are mediated, as the number of trials continues to decline. Understanding mediators’ mindsets and fully embracing the goals of mediation can help an attorney and her clients settle more conflicts and save more money.
Mediator as Referee
Mediators do not take sides during mediation. After all, their neutrality leads attorneys to hire them in the first place. In civil cases, mediators must avoid leaning either towards plaintiffs or defendants. Divorce mediators must avoid favoring wives over husbands or vice versa.
Effective mediators wear their neutrality like a badge of honor and may even provide the parties with a short biography at the start of the mediation session. A mediator might introduce herself and mention that she represented both plaintiffs and defendants in civil cases over a number of years. Attorneys and litigants can certainly ask the mediator more about her background, either before or during the mediation. This can build trust and further convince all parties that the mediator is capable of viewing conflicts in an objective way.
Mediator’s Goal
The mediator wants to help resolve the conflict and walk out with at least the basic terms of a settlement agreement. Many mediators keep statistics of their settlement rates and will use high settlement percentages to attract more business. Litigants new to the litigation process should understand the mediator’s goal, especially when the parties start hinting they are getting ready to leave. The mediator wants to exhaust all reasonable options before letting the parties walk out.
Giving Opinions
Mediators differ on whether she should give opinions of the parties’ cases when asked. Many mediators previously worked as judges in state courts and use their experience to give general opinions about certain claims. Although most mediators will not ridicule a party’s position, some mediators will say something like, “It is a tough case” or “You know we have conservative juries around here” to hint that the party might want to consider taking the offer on the table.
Legal Advice
Mediators do not give legal advice and typically require the parties to sign mediation agreements to that effect. Mediators do not want to be accused of creating attorney-client relationships.
Helping the Parties Reach the Finish Line
An effective mediator starts with the end in mind. If a mediator is working on a soft tissue injury case with low medical expenses, he knows that the insurance company is not going to pay much on the claim. The mediator might first need to help adjust the plaintiff’s expectations at the beginning of the mediation. Once the plaintiff realizes the true range of values for his case, the mediator knows the case will probably settle.
Mediators prove their worth when resolving hard cases. Sometimes parties draw lines in the sand and threaten to walk out over a few thousand dollars or a few nonmaterial contract terms. Effective mediators convince the parties to keep talking with each other even when all seems lost. Sometimes one small suggestion, such as a party paying the opposing side’s mediation costs, or an attorney cutting his fee, can get settlement talks moving again.
Effective mediators help resolve cases by remaining neutral, focusing on the goal of settling the conflict, and helping the parties overcome obstacles to settlement.
Author By-line – Jennifer Carrigan wrote this article on behalf of motorcycleaccidentlawyerkornberg.com where you can find legal advice when you are in a motorcycle accident.
