If you find yourself a party to a lawsuit or dispute, whether as an individual or as the corporate representative of your company, there is a good chance that you will take part in at least one mediation session. What can you expect at that mediation? Before we can answer this question, we must first ask, “What is mediation?” Mediation is a form of “alternative dispute resolution,” and it can be a valuable way of resolving a dispute without the need for litigation and a trial.
Sometimes parties to a dispute mutually agree to submit their dispute to mediation without any requirement from a court to engage in mediation; this is considered “voluntary” mediation. In other cases, mediation is required. For example, after the discovery phase of the case is completed and prior to a pretrial settlement conference held before the court, many of Maryland’s Circuit Courts require parties to a litigation matter to engage in a court-ordered mediation. In either situation, mediation involves all parties to a dispute working with a professional mediator to seek a negotiated resolution of the dispute. Professional mediators are trained in conflict resolution, and this resolution can take many different forms.
Mediation is less formal than court proceedings. Although it is often held within the context of an adversarial dispute, mediation itself is not an adversarial process. Mediation sessions typically are held in an attorney’s office with all attorneys and parties present, along with the mediator. However, since the outbreak of the COVID-19 pandemic, mediation is now often carried out remotely via Zoom or a similar videoconferencing platform, with parties separated into their own remote “rooms.” Nothing said or written during mediation is officially recorded, and nothing said during the mediation can be used against either party in any subsequent legal proceedings. The mediator is not acting as a judge, and his or her role is not to adjudicate the strengths or weaknesses of either side’s case. Instead, the mediator will try to find areas of agreement or ways to settle a dispute without starting (or continuing) litigation. Mediators are useful because they are independent third parties who can look at cases objectively and provide everyone with unbiased feedback.
During a mediation, the mediator often will begin with a brief statement explaining their credentials and their “ground rules” for the mediation. The attorneys will then have an opportunity to give brief statements setting forth their respective clients’ positions regarding the case. Prior to a mediation, one thing you should consider is how involved (or uninvolved) you would like to be during the mediation session. Mediation is a process to resolve your dispute and is often most effective when the discussion is driven by the parties as opposed to the attorneys. However, different mediators have different styles, and your level of participation can also be adjusted according to your comfort level throughout the process.
The mediator will explore various ideas for settlement, addressing questions to the attorneys or the parties. In some mediations, the majority of the proceedings take place with everyone in the same room. More typically, the mediator may suggest private meetings between the mediator and one side or the other, or just with the attorneys. Since these rooms are now often virtual, with the parties being in different physical locations and meeting via secure internet connection, think about the topics you wish to discuss in front of the other party and the topics you wish to discuss directly with the mediator. If you are not sure, you can always speak privately with your attorney or with the mediator at any time during the mediation. In addition, you may always ask the mediator not to share particular information with the other party.
Throughout the mediation, you should always be cordial with all parties, attorneys, and the mediator. Try to focus on the problem and potentially solving it, not on the other party. This can be difficult! Do not be afraid to direct your comments to the other party if you wish to do so. Feel free to look the other party in the eye and tell them how you feel. During the mediation, you may wish to write your comments or feelings down to clarify your thoughts, if you think this will be helpful. This may be one of your last opportunities to address the other party and tell them how you feel.
Another thing to consider in preparation for a mediation is how you would like this case to settle. What specific things do you want from a settlement? Is there anything you are willing to give up or concede? Think in terms of both monetary and non-monetary aspects. The mediator may encourage you to think about what you need from a settlement rather than what you want.
Voluntary mediation can be preferable to litigation in many ways. If it results in a settlement, it typically costs less, takes less time to complete (it sometimes takes only a single session), and protects the parties’ confidentiality. In addition, studies have shown that agreements reached in mediation have a higher compliance rate than other settlements, because mediated agreements are decided by all parties involved in the dispute rather than having a “win or lose” outcome imposed by a judge. However, by pursuing mediation, you are not giving up your legal rights. If an agreement is not reached at the mediation, any party to the dispute can still have the dispute adjudicated by the court.
A substantial majority of disputes and lawsuits settle without going to trial, and these settlements are often the result of successful mediation. You should always view a mediation session as an opportunity to resolve a matter on terms acceptable to you, terms which you had a direct hand in crafting. Many attorneys will tell you that they have seen disputes settle at mediation that they never believed would resolve without a trial. For this reason, it is important to keep an open mind and listen to proposals made by the opposing party(ies) and the mediator. Often, a dispute will settle through mediation on terms neither party had considered prior to that day.
Whether voluntary or court ordered, in person or virtual, mediation requires you to trust the process in order for it to be effective. When parties make a good faith effort and participate in meaningful mediation discussions, this often leads to a resolution in which all parties are left feeling heard and feeling satisfied with the outcome. So, if you ever do find yourself taking part in mediation, you should approach it as an opportunity, not a formality. If you do, you may very well be surprised by the results.
For more information, contact the Davis, Agnor, Rapaport & Skalny attorney with whom you typically work, or one in our Estate, Trust & Guardianship Litigation Practice Group.
