Explanation of Mediation and the Process: a plain English, simple text designed to explain the concepts of mediation, the risks vs. benefits and more.
Mediation is one of many forms of Alternative Dispute Resolution ("ADR"). In Southern California, mediation is typically provided for free to those in the Court system, and litigants are also free to decide to hire a private mediator rather than one provided by a court, both before and after the lawsuit has been filed. Mediations are informal meetings (where generally every party or decision maker involved in the dispute is present) where the mediator (a neutral person, generally an attorney or judge, but sometimes can be neither) meets with all parties, attorneys, and/or insurance adjusters with the single goal of settling your case. Mediations are always confidential, which is designed to encourage parties to speak freely knowing anything said can't be used aginst them later, such as during trial. In mediation,you are in control, and no one, not even a judge, can force you to settle your case. In addition, mediation allows the parties to hear the arguments from the other side.
Benefits of Mediation
If any lawyer tells you he can guarantee you will win at trial, you should fire that lawyer. Even the best case can be lost at trial because juries are increasingly unpredictable. Mediation allows you to settle your case, without the risk of 12 strangers deciding your are guilty or deserving of a million dollars because they are biased, bored, angry that they are there, or many other risks of going to trial. For example, in California, the party (not the attorney) is responsible to pay the prevailing party's costs (and sometimes expert witness costs and attorney's fees). Just because you have a strong case doesn't mean you shouldn't settle it. Because even if you do get a good jury and get a great win, you may spend the next 5 years fighting the award on appeals. Mediation immediately resolves your dispute, and spares you from spending a week or more typically participating and waiting in angst for the jury to out with the verdict. Mediations are informal and generally worth trying.
Risks of Mediation
Mediations take a lot of time and energy to prepare for. If you or the other side isn't truly ready and willing to talk settlement, don't waste your time mediating, ESPECIALLY a private mediation (which is usually thousands of dollars). Also, when you settle a case rather than go to trial on it, you never get as much as you could with that home run hit with the jury. The popular saying is that "a good mediation settlement is one in which both parties walk away equally unhappy." This makes sense as a good mediator will always try to get the defendant to pay more than anticipated and get the plaintiff to have reasonable and realistic expectations, thereby settling for less than he or she had hoped for. In addition, private mediations are costly. However, if you have a big case, and the parties are serious about settlement, it is worth it to spend the money to get a great mediator. Lastly, by going to mediation and settling the case there, you never do get your day in court.