What to Expect at Mediation
So the court has ordered you to attempt to mediate your dispute before moving forward with the litigation process, or maybe the opposing party has suggested that mediation might be a preferable route to take. What can you expect when you arrive for your mediation?
Mediation may take place in a room at the courthouse, an an attorney's office, or another location where all parties and the mediator can meet together in the same room and occasionally break off into smaller groups to talk.
The mediator is a neutral party whose job it is to delve deeply into the issues in your dispute and help all the parties reach a solution. That is not to say that the mediator is there to find a solution for you, but to facilitate you and the other party to find your own solution. This solution may take the form of a compromise where everyone gets a little of what they want, but preferably it will be what we refer to as a "collaboration" in which both parties work together to find a way to meet everyone's goals at the same time. The mediator may be an attorney, but the mediator does not represent either party and is not there to dispense legal or financial advice. If either party wants to seek that advice during mediation, they may step out and call an appropriate resource.
Anything discussed in mediation, including anything said by either party or their attorneys, is confidential and cannot be used later in litigation. Likewise, any written documents or briefs the mediator asks you to create will be used only for mediation and cannot be used in a later trial or motion hearing. This provision is to ensure that all parties feel free to be open and honest with each other and with the mediator so that the best solution can be reached.
There are some exceptions to confidentiality. Any revelation of abuse, fraud, or future or ongoing criminal activity is exempt from confidentiality rules and may be reported to appropriate authorities. In addition, if you reach an agreement in mediation, that agreement will be put in writing and will be made public so that parties may hold one another accountable for the terms of the agreement.
No one, not even the court, can require you to settle your case at mediation. A court can require you to attend, but you have an absolute Constitutional right to a trial, and either party or the mediator can at any time decide to end mediation and allow the case to continue on in the litigation process. It is usually in the best interest of all parties involved to make their best effort and negotiate in good faith in an attempt to reach a settlement at mediation. Mediation is much, much cheaper than the costs of going through the litigiation process. There is also always a risk of losing when you go to trial, and you will be bound by the decision made by the judge or jury. Mediation gives you the opportunity to decide for yourself what conditions will bind you in the future.
After initial greetings and an orientation identifying locaitons of bathrooms, telephones, and refershments, the mediator will make an opening statement explaining the process and everyone's role. After the mediator's statement, each side will be invited to make their own opening statement and tell their side of the story about what brought the parties together for mediation. This is to be a monologue by one side at a time with no interruptions. You should make notes about anything said in the other side's opening statement that you want to address then wait for your turn to do so, but make sure you don't spend so much time responding to their opening than you don't tell your own story. The mediator may have some initial questions for one side or the other to clarify what was said during opening. Traditionally, the plaintiff will make an opening statement first, followed by the defendant.
Following opening statements, the mediatior will usually go into a "joint session" in which discussions are held between all parties, guided by the mediator. This is typically when the mediator attempts to make an initial determination of each side's interests and establish an agenda to be addressed throughout mediation.
At some point, the mediator may decide that discussions would benefit from private discussions between the mediator and one party at a time. These discussions are called "caucuses." You shouldn't read anything into which side the mediator decides to caucus with first or if the mediator spends more time speaking privately with one side than the other. This is not a sign of favoritism, it is simply a reflection of the how long it takes to discuss everything that needs to be discussed.
What is discussed in a caucus is confidential and will not be disclosed to the other party unless you tell the mediator that it is ok to discuss that particular point with the other side. A caucus is a good opportunity to discuss with the mediator things that you didn't want to say in front of the other side. This is also probably a good time to think about what could happen if you are not able to reach a negotiated agreement in this mediation. What would be the best scenario that could come about if you go forward with litigation instead of reaching an agreement today? What is the worst case scenario. What do you think is the most likely scenario? What would all of the collateral consequences of each of those possibilities? Discuss all of this along with anything else you want to bring up outside the presence of the other party.
The mediator may decide to caucus with one or each side multiple times and may or may not hold joint sessions between caucuses. The mediator's goal is to identify everyone's interests and help you find a solution where all those interests are met.
If you are able to reach an agreement, the mediator will bring everyone back together for a joint session to discuss that agreement. At this point, the mediator will attempt to make sure everyone is on the same page so that the agreement may be put into writing. Once all the terms are agreed upon and put into writing, both sides will be asked to review and make sure that it meets up with everything they have settled upon.
If both sides have representation at mediation, your lawyers will review the agreement and if they approve, the agreement can be signed immediately. This signed agreement is a legally binding contract.
If you attended mediation without representation, you will have some time to have an attorney review the agreement before you sign it and make it a binding contract. That review time is usually ten business days.
If this mediation was court ordered, the written and signed agreement may be sent along to a judge to turn it into either an order or judgement of the court. A judgement carries the same weight as a verdict in a trial and any debt created by the agreement will be part of the debtor's credit report. An order is issued by the judge and will not affect anyone's credit, but is still enforceable and any failure to comply with the agreement can result in being held in contempt of court.
Mediation is an opportunity to take the resolution or your conflict into your own hands rather than placing the outcome in the hands of a jury or judge. It is also a far less costly process than litigation and trial. If you go into mediation with an open mind and resolve to neotiate openly and in good faith, you may be very pleasantly surprised with the whole experience.