So, what is a mediation?
A mediation is a meeting between the parties and their attorneys wherein the parties attempt to settle their dispute with the help of a trained, neutral negotiator. Often, throughout the litigation process, the parties and their attorneys get firmly entrenched in their thoughts about their own case, and they fail to realize that there is another side to the story, and that other side of the story will be brought out in court. A skilled mediator will help the parties and their attorneys realize the strengths and weaknesses of both parties' cases, which often makes the parties become more reasonable in their thoughts about the value of their respective cases. The mediation is often a chance for each party to see what the other party is going to say about their case if the case goes to a jury trial, and it can be eye-opening for both parties. I have seen cases successfullly settled at mediation where the parties were as much as $10 million apart when they walked into the mediation.
How does a mediation work?
Typically, the parties will agree upon a mediator and will schedule the mediation on a date that is agreeable to all parties, attorneys and the mediator. In St. Louis, most of the mediators request that the parties send to the mediator a position paper in advance of the mediation. The position paper should tell the mediator the relevant facts of the case, the party's respective position on the case, and the status of settlement negotiations.
On the day of the mediation, the parties and their attorneys will typically meet with the mediator to sign an agreement to mediate the case. The parties will then give a brief opening statement to each other and to the mediator. After the opening statements have been completed, the mediator will typically separate the parties from one another and place them in separate rooms. The hard work of trying to get the parties to a settlement will then begin. The mediator will talk to each party and the party's attorneys confidentially about what each party thinks are the strengths and weaknesses of their cases, and will go back and forth between the rooms relaying offers to settle the case. With a lot of patience and skill, a mediator can bring the parties to a figure that is acceptable to both parties. If he or she is successful, the case settles right then and there, and the parties have piece of mind in knowing that their lawsuit has come to an end.
What happens if the mediator is unsuccessful in getting the parties to settle?
If, for some reason, the mediator simply cannot get the parties to reach an agreement, then the parties just go back to the litigation process. The matters discussed at mediation cannot be used at trial against either party.
Why is mediation a good alternative to a jury trial?
1. Jury trials are very uncertain. You are placing your fate in the hands of 12 strangers and you are hoping that those 12 strangers like and believe your side of the story better than your opponent's side. And even if those 12 people like your side of the story better, those 12 people might think you are entitled to much less money than you feel you are owed. When you mediate your case, you decide how much you are willing to take in settlement of your case.
2. Jury trials are expensive. Depending on the severity of your injuries and the complexity of your case, it may be necessary to spend tens of thousands of dollars getting your case ready for trial and presenting your case in court. On the other hand, the only costs associated with a mediation is the mediator's time and a nominal administrative fee for the mediation facility.
3. Jury trials are not final. If you win a jury trial, the other side can appeal. Those appeals can take months--even years. And the appeals court can take away your jury verdict or they can make you try your case all over again. On the other hand, if you resolve your case at mediation, the case is over. You get paid and you get to move on with your life.
I am a firm believer in the mediation process. We have handled dozens of mediations here at Bollwerk & Tatlow, with the vast majority of thoses cases resulting in settlement on the day of the mediation.