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My Case Went To Mediation… What Is Mediation?

Short Answer: Mediation is where each party sits in a separate room with their attorney and the mediator walks back and forth between rooms and talks to the parties to see whether they want to settle the case.

Longer Answer: Mediation is a forum in which an impartial person—the mediator—facilitates communication between parties to promote reconciliation, settlement, or understanding among them. A mediator may not impose his own judgment on the issues for that of the parties; anything you share with a mediator during the mediation process is confidential and cannot be used as evidence (subject to narrow exceptions, e.g., reporting abuse).

Before mediation day, the mediator may ask each party to sign certain agreements regarding confidentiality and cooperation and will usually request a position statement or other documents from each party to review before the mediation begins. Mediation is usually a half-day or an entire workday but can be scheduled for only a few hours, depending on the dispute.

On mediation day, the process usually starts with each party or their attorney giving an opening statement about their side of the dispute. This presentation can occur in an “open session” where all the parties meet together, or in a “closed session” where each party/attorney presents to the mediator in separate rooms.

As the mediator learns about the details of the dispute and the parties’ interests and positions, the mediator will go back and forth between them to see if there is a window of settlement within which the parties might agree to a tolerable compromise. The mediation might end with a settlement, with no settlement, or any number of outcomes in between. If the parties are close to settlement, they can agree to extend the mediation, to some sort of post-mediation cooperation towards settlement, and/or for the mediator to draft their own settlement proposal (called a “mediator’s proposal”).

A mediator’s proposal is usually implemented at the end of a productive but unsuccessful mediation. The mediator will draft a settlement agreement with terms that the mediator believes both parties would accept. If both parties accept, the mediator shares the executed agreement with all parties. If one or more parties decline the terms, the mediator shares with each party only that there was no agreement.

For further questions and updates please check our website or contact Managing Litigation Attorney Christopher M. Lowry, at PLGLitigation@patellegal.com.

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