To Mediate or Not To Mediate: That Is the Question

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Mediation is a term that encompasses a variety of situations and is alternatively referred to as alternative dispute resolution where parties voluntarily come together to resolve a dispute.

Although mediation can range from informal mediation between two parties and their attorneys the focus of this article, however, is to discuss the advantages and disadvantages of mediation between litigants, their counsel and a hired mediator. In a mediation setting, the parties and their counsel will appear before a mediator who is appointed by either the parties themselves or, in some
cases, by the court if it is a court-appointed mediator. The duration and tenor of mediation vary widely depending on the complexity of the dispute, the relative position of the parties, the willingness of the parties to mediate and, quite frankly, the competence of the mediator.

How Is Mediation Conducted?

In general, mediation requires decision makers from the parties, counsel for the parties and the mediator with a mutually agreed upon venue for the mediation. Once all of this is in place and the mediation commences, the mediator introduces himself to both the parties and counsel and explains in some detail what his role is and what he hopes to accomplish during the mediation. At the outset of the process, the mediator will provide everyone with a confidentiality form that requires what is said in mediation otherwise stays in mediation.

The attorneys for both sides will then provide a brief opening argument. In advance of mediation, often times the selected mediator will request that counsel for the parties provide him with certainly written submissions so as to allow the mediator with the ability to understand and study the case prior to the actual mediation. This enables the mediator to understand the facts and issues in the case.

After the opening statements are made by counsel, the parties, and their respective counsel are moved into separate rooms. The mediator will then move back and forth from each room separately in order to facilitate negotiations between the parties. Many in the legal profession describe this process of going back and forth from one room to another as a form of "shuttle diplomacy."

The mediator, of course, will begin the process by speaking with the plaintiff. Then, he will shuttle back and forth with each party discussing the strengths and weaknesses of each side. As he moves along with the process, the goal of the mediator is to push the plaintiff's demand down and, at the same time, to increase the defendant's offer until a mutually acceptable middle ground is reached between the two parties.

What Are the Factors That Should Be Considered in Selecting a Mediator to Resolve My Legal Issue?

Suffice to say, selecting the right mediator can make the difference between a successful mediation and one where the parties leave more frustrated and hardened in their legal positions than they were before the mediation started. Several key factors go into selecting whether mediation is right for your case as well as selecting the right mediator and they are as follows:

a.) Subject Matter Expertise

Whoever is selected as a potential mediator has to, as a condition prerequisite, have the requisite knowledge of the subject matter of the mediation. That said if you have a contract litigation matter or business dispute you will select a mediator whose background is fitting for your particular dispute. To this end, many mediation services exist in larger metropolitan areas, such as Boston, and have a variety of attorneys and former judges as panelists. These private mediation services provide the parties with the resumes of each of the panelists. For the use of private mediation services versus court appointed services, the mediators usually charge a daily rate which is then split between the parties. The rates for mediators will vary depending on the experience of each panelist.

Depending on the case, a retired judge can often time be very valuable mediator across a number of different subject areas due to his experience in the trial court. If a judge had been known, for example, to be competent and fair to both plaintiffs and defendants then he may qualify to be a good candidate for the mediation. Likewise, practicing attorneys who have done both plaintiffs and defendants work can also serve as competent and effective mediators.

b.) The Mediator's Particular Style

This is one of the ingredients of how a mediator is selected. All mediators have different styles and personalities. Some are more passive and some are more combative. If you are selecting a retired judge to serve as a mediator, for example, you can be sure that the person you saw in the courtroom is the same one you are going to see in the mediation room. Put simply, a leopard never changes its spots, as they say. In the context of the mediation, a more aggressive personality may be more successful in finding ways to push the parties toward a resolution. A good mediator will apply pressure to both parties on the strengths and weaknesses of their case and, through that effort, find a place where a resolution can be achieved. In retaining a former judge to mediate a dispute, my experience has taught me that if a particular judge was passive in the courtroom he is likely to bring the same characteristics into mediation.

c.) What if the Mediator Is Biased?

Mediators are not supposed to be biased but sometimes a mediator, for one reason or another, has taken a side that favors one party over the other. Bias can be sometimes be seen early on after the mediator has reviewed the papers of the case submitted to his attention by counsel. The bias can be seen in either a question or statement made by the mediator. Most mediators, however, take their jobs very seriously and are extremely well trained to remain neutral in any dispute. The lion's share of mediators goes out of their way to be impartial and to adhere, at all times, to the highest standards of ethical conduct. In order to avoid any professional biases, my suggestion to clients is always to select a mediator who has had both experiences representing plaintiffs and defendants. In addition, through the mediator selection process, counsel will hopefully choose a mediator who has attained a high professional and ethical ranking in order to eliminate the element of bias in the proceeding.

Set Realistic Goals Going into Mediation

Once you have decided to go to mediation to avoid the cost, the time and the headaches usually associated with litigation you must understand that, unlike a trial, mediation is not a situation where the winner takes all.
Mediation is a forum where parties seek to resolve and compromise conflicts on terms that are acceptable but not perfect for both parties. Having said this, it is important for an individual or business when electing mediation as a form of dispute resolution to set realistic goals of what they want to accomplish in mediation keeping in mind the costs of going to trial. Resolving a case before trial through mediation has many benefits including, avoiding potential liability from an adverse judgment after trial, avoiding expert fees, avoiding large attorney's fees and associated litigation costs as well as the unquantifiable cost of interruption to your business.

The other major advantage of mediation is that it allows the parties to shape the outcome. If you go to court, either a judge or jury decides what damages, if any, you will recover, unlike mediation where the parties are free to voluntarily compromise certain aspects of their claims.

If for some reason the parties fail to achieve a resolution at the hearing two things can happen: 1) The parties return to litigation if litigation already has begun or commence litigation as the case may be or 2) Proceed with litigation until a later point when the opportunity strikes for another bite at mediation. The Katz Law Group has been involved in many mediations where it has taken more than one mediation session with the same mediator to get to the "finish line." Success in mediation depends on a fragile balance of the facts and issues in the case, the personalities and goals of the clients, and the outside intangibles of cost, time and potential for bad publicity that are present in each case. Even in situations where mediation fails, at the very least, both parties have learned a little more about the other side's position in the case.

When to Mediate

To a very large extent, the time to mediate will be determined in large part by the amount of the controversy, the relative liabilities of the parties and the overall consideration of risk, cost and overriding objectives in each case. Parties can mediate before a lawsuit begins or after discovery has been concluded in a pending court case. Often, in the personal injury setting, as an example, mediation is particularly effective where the parties can agree that liability is established and only the damages in the case are in dispute. The decision as to when to mediate is a strategic one and must be discussed with your attorney. Having represented many defendant employers in sexual harassment cases, for example, sometimes a quick mediation is the best option to avoid any bad publicity or diminution to that client's brand.

In the end, what makes mediation work is the expertise of counsel and the facility and experience of the mediator. By far, though, the most important component of making mediation work is the open-mindedness of the parties to the case. The key ingredient to any successful mediation is that the parties enter the process with a realistic expectation of the value of the case and having, at the same time, a clear understanding of both the strengths and weaknesses of their matter.

Attorney David S.Katz is the founder and managing partner of the Katz Law Group, P.C., located in Marlborough, Massachusetts.

The Katz Law Group has successfully counseled many clients through many mediations.

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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.

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