Mediation has become the most popular means of settling cases. It is a form of alternative dispute resolution (ADR).
A mediator is a neutral. She is usually an experienced lawyer or retired judge, with subject matter expertise in the type of case being mediated. The parties usually share the cost of the mediator. Legal briefs are sent to the mediator in advance of the session to familiarize the mediator with the case.
During mediation, the mediator facilitates negotiation between the parties and goes back and forth from plaintiff to defendant to try to forge a compromise. If all goes well, a binding written settlement agreement is generated and signed before the parties leave the mediation session.
Clients typically like mediation because the mediator has no power to control the parties. The parties have ultimate control to accept or reject settlement offers and to walk away from the bargaining table at any time. The mediation process also tends to be very non-confrontational. The attorney and client will normally have their own conference room located far away from the defense.
Q: Can the defense use the result of the mediation in a trial later?
Mediations are confidential. At the beginning of every mediation, the lawyers and the parties are required to sign a confidentiality agreement, which means that settlement demands, offers and counter-offers are not admissible at trial.
The intent of confidentiality is to allow the parties to negotiate openly without having to worry a judge or jury will be allowed to consider negotiations, when weighing the evidence in rendering a verdict. In most mediations, there is really nothing to lose other than the time and money devoted to the mediation process.
Q: Are retired judges the best mediators?
Judges tend to be accustomed to making orders and rulings that tell the people what to do. Mediators do not have that luxury — the mediator cannot force a lawyer or a party to do anything. Mediators must rely on their ability to understand the case and make persuasive points on both sides, and to build trust with the lawyers and parties in order to help them come to a voluntary decision to settle the case.
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