TV and movies offer a steady stream of courtroom scenes, but – as a mediator, I’ll be the one to say it! – mediations are not exactly high-drama fodder. Having never seen a mediation before, most clients do not know what to expect, and they have a lot of questions and misunderstandings.
Today we are talking about the top six things your client may not know about mediation. Clients who know what to expect are far more likely to be able to enter into the settlement process and help get the case resolved.
1. Opposing Sides are in Separate Rooms.
Be sure to explain to your clients that the two sides will move into separate rooms after the opening conference. Litigation can result in a lot of hard feelings, and mediators generally agree that the parties have a better chance of settling a case if they move to separate conference rooms.
Occasionally it makes sense to gather everyone together again to discuss a particular issue, but for the most part, the two sides remain separate.
2. The Mediator Will Go Back and Forth.
Once the parties move into separate rooms, the mediator goes back and forth between the two sides.
This phase can look very different depending on the mediator, so it helps to know what your mediator does as you explain this phase to your clients. Many mediators carry numbers back and forth; when one side makes an offer or a demand, the mediator takes it to the other side.
When I mediate a case, however, I use this phase to ask you about the strengths of your case and the weaknesses in the other side’s case. I will probe the other side for the same information from their point of view. My goal is to make sure everyone has full information because you make better decisions when you are working with all the facts.
3. The Mediator is a Neutral, Not a Judge.
Clients frequently assume the mediator is some sort of judge. You will want to let your client know that the mediator is a neutral, not a judge. As I explain at the start of every mediation, being neutral is what makes me effective as a mediator, because I am able to look objectively at the case. I can help the two sides figure out a way to work together to resolve the case without having to go to trial.
Ultimately, though, the mediator is not going to issue a “ruling” in the case, or tell the parties that they have to settle for such-and-such amount. The parties decide whether the case settles, and for how much. If the case does not resolve at mediation, a judge or jury will make the final decision.
4. What You Tell the Mediator is Confidential.
Most clients know they can talk to their lawyer confidentially, but they really are not sure what to think when they talk to the mediator. Your clients will be more open and helpful in the negotiations if you explain that what they tell the mediator in a private conference is confidential. Usually, you are going to want the mediator to tell the other side what was said, but the option is yours.
5. You Never Have to Take the Deal.
Clients will be more comfortable with the mediation process if they understand that the other side’s final offer is not binding in the same way that a jury verdict is (subject to an appeal or JNOV). If the client doesn’t like the offer/demand, the client doesn’t have to take it. It’s just that simple.
6. Bring a Book!
Urge your clients to bring some work to do, knitting, a book to read, a game to play on their phones, a crossword puzzle- anything to pass the time while they wait. Clients will be very surprised by how much time they will spend waiting, which can get very boring.
Explain that after your side makes an offer or demand, the mediator is going to head into the other room. The mediator will talk to the other side, which will then want to confer privately about how to respond. Sometimes a party has to call back to a corporate office to get authority to make a move.
Once the decision is made, the other side will call the mediator back in and explain the next demand or offer. All of those things have to happen before your client will hear back.
The bottom line is that your client may be surprised by how much of the day is spent waiting and might as well have something to do.