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| Shapiro, Appleton & Washburn

Authored by: Randall Appleton

Many courts throughout the country are utilizing court ordered mediation as an alternative dispute resolution tool to assist parties in resolving cases prior to jury trials. Although the procedure varies from jurisdiction to jurisdiction (primarily in the timing of the mediation conference in the litigation process) the format is relatively consistent.

Of course, a lawsuit is initiated when the plaintiff files a Complaint in an appropriate court and has the Complaint served upon the defendant. The parties typically engage in discovery by sending written questions concerning the case to each other to be answered within a time frame prescribed by statute. Depositions may also be conducted which involves the attorneys representing each party making arrangements to pose questions in person to a witness or opposing party who has been placed under oath by a court reporter. Typically, once the parties have concluded the initial discovery in a case, the court will issue an Order directing the parties to participate in a mediation conference to discuss the case with the opposing party and a neutral party or mediator.
The plaintiff’s counsel is usually charged by the court with the responsibility of scheduling the mediation conference and the opposing attorney will typically agree on a mediator to conduct the conference; however, in some jurisdictions the court appoints the mediator and it is the mediator who schedules the conference. Each party is typically required to be represented by an individual who has the capacity to agree to terms which will ultimately lead to settlement of the case. This means the plaintiff and a representative of the defendant’s claims department or insurance company with the authority to obtain funds in an amount sufficient to settle the case for a reasonable amount are usually in attendance.
Each party is typically represented by counsel at the mediation conference. The mediation session typically begins with the plaintiff and defendant along with their attorneys meeting with the mediator jointly in a conference room. The mediator will typically introduce himself or herself to the parties and explain the guidelines for the process and their fee. Mediators are typically paid an hourly rate for their preparation for, and participation in, the mediation.
Once the mediator has made the initial introductions and provided an explanation of the process, the plaintiff’s attorney will typically provide a brief description of the plaintiff’s case as well as any settlement negotiations that were conducted prior to the mediation conference. The defense counsel will typically provide a brief description of the defenses available in the case following the plaintiff’s counsel’s summary.
Following the statements by both attorneys, the mediator will typically place the defendant and defense attorney in one room and the plaintiff and plaintiff’s attorney in another and will meet with each party separately. At this time the mediator will begin eliciting settlement proposals from each party and communicating it to the opposing party with hopes that these communications will ultimately lead to a settlement of the case.
If the parties are able to reach an agreement which settles the issues in a case, the mediator will reduce the terms of the settlement to writing and have the attorneys and parties sign the agreement to indicate their consent to the settlement. If the parties are unable to settle a case at mediation, the mediator will report to the trial court that the mediation failed and the case should proceed to trial.
There are some important things to know about mediation. Mediation is generally a voluntary process in that the mediator is not empowered to force a party to take any action involuntarily. The mediator simply facilitates focused discussions concerning the potential for settlement of the case. However, if the parties do reach an agreement which settles a case, that agreement is in essence a contract and both parties are bound to comply with the terms of the agreement.
Mediation offers advantages to both parties. It allows the parties to meet and explore the potential settlement prior to incurring all the costs associated with a jury trial and a potential subsequent appeal. Mediation also allows the parties to meet relatively early in the litigation process (in most cases) which may also lead to an early resolution fo a case to the benefit of all parties. Of course the potential benefits of mediation are tempered by the conduct of the parties. If either party maintains an unreasonable position, the chances of resolving a claim are essentially nonexistent. On the other hand, if each party realistically evaluates the case and enters the mediation session with an open mind, the process may work to the benefit of all parties involved in the case.

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