Making the Most of Mediation

When businesses or individuals get into legal disputes, sometimes mediation can help the parties resolve their differences and avoid costly lawsuits. Mediation is a form of guided or assisted settlement negotiations. Settlement is the process by which two or more people or entities (or parties) come to an agreement by which their problem is resolved and each side agrees to be legally bound by the terms of the settlement. When two or more people or entities have a problem with one another they can agree to have a qualified third party attempt to assist them in solving their problem by negotiation. The third party is referred to as a mediator. The mediator is sometimes a judge or a retired judge or some other qualified individual with experience in negotiation and/or the topic area which relates to the problem the parties are having with each other. The mediator does not decide the case. The mediator, even if he or she is a current judge (though never the judge involved in an active lawsuit between the parties), makes no rulings that legally bind the parties. Very often, the negotiations of the mediator are privileged and confidential. The mediator cannot force settlement. The mediator can only talk to the various sides, pass along authorized messages or offers of settlement, and provide his or her opinion as to the risks and benefits of settlement. Mediators are ultimately facilitators of open, frank and hopefully fruitful negotiations.

What follows are some general tips to remember when engaging in mediation or deciding to engage in mediation. To learn more about mediation beyond the tips below check out the more in depth blog post regarding this topic at http://blog.vistalawyer.net/?p=24.

If Possible, Chose your Mediator to Fit Your Case.

Different mediators had their own style of how they handle meditations. Some want to only meet with the parties separately in different offices or conference rooms. Some want to meet with the parties all together. Some mediators will pressure both sides to settle. Some mediators do very little other than shuttle offers back and forth between the parties, acting as a messenger. Some mediators have a great deal of advice to offer, some speak very little. If you have a choice of who your mediator is, consider the cost benefit of choosing a public mediator (usually court or government provided or appointed and usually more affordable or free) versus a private mediator (almost always requiring a fee). Also consider who your mediator is. A private mediator may be worth the extra money if their mediation style and skills are just what your case needs.

Be Creative.

In mediation, the parties can be as creative as they want without regard to the law. One memorable occasion illustrating this point sticks in my mind. I represented a party in a private mediation involving a business dispute. The parties reached an agreement regarding their problems and part of the resolution was rather than one side paying the other in cash money, one side was effectively paying the other in the form of manure (more specifically, organic fertilizer). No judge would be able to award someone manure in a court of law, but that was of value to the parties so in mediation they were able to reach a compromise using manure rather than money. Remember, you do not only need to think in terms of money. Manure can work just as well, or whatever services or assets you have to exchange or barter for. Sometimes a simple apology can be part of a settlement and make a world of difference.

Prepare for a Potentially Long Day.

Bring a book or something to occupy your time. Mediation can be filled with a great deal of “hurry up and wait” time.

Listen and Keep an Open Mind.

Remember that if the mediator or even your attorney keeps bringing up the negatives and risks of not settling, they are not trying to force you to settle but they want to make your settlement decisions fully aware of the. There is no greater gamble than going to court. The mediator and your attorney are doing what they can to help you by being frank and even being a bit pessimistic about your case in mediation. No one can force you to settle so take the time during the mediation to really consider the risks of litigation where nothing is ever certain.

Be Comprehensive When Negotiating Terms.

If you do make an offer or consider an offer, think of all the little details not just the big terms. Nothing is worse than agreeing to settle for X amount of money but then forgetting that you have to agree as to when it is paid, how it is paid, in what form is it paid, and what about the attorney fees and costs, the liability release, the convents, confidentiality, and other promises. The devil is in the details. Don’t forget to decide on all the details before agreeing to settle as it can ruin a potential settlement if you do and plunge you back into an expensive and uncertain legal dispute.

Get it in Writing.

Make sure that any settlement reached is put in writing and signed by the parties. Do not leave the mediation table until that is done even if your attorney has to hand write it out, something I have done on occasion. All too often, the second the parties end the mediation thinking they have a settlement, someone wants to change a term or change their mind and without something in writing, you have no basis to enforce the settlement in court. Get it in writing AND signed or you have no deal. Insist upon it no matter what the other side says.

Be Prepared.

Come to the mediation prepared. That means have your financials in order so you know what you can offer and/or what you can accept. This also means that if you are trying to get the other side to agree to your terms that you have the facts and proof at hand to support your settlement offer. Nothing is worse than not having the facts and figures at your fingertips to make an informed decision while at the mediation, especially if you have to pay for the mediator's time. Have your facts straight ahead of time so you can urge the mediator to spend more time persuading the other side of the worth of your settlement offer. Make the most of the process and participate in good faith.

Demand that Decision-makers are Present. I have been in meditations where the representative of the company on the other side of the dispute showed up to mediation without any authority or power to settle. This frequently happens when insurance companies are involved in lawsuits or when a company is involved in a lawsuit but the board of directors has not authorized the client representative to settle for certain terms. In that instance it is very hard not to feel as if the other side is acting in bad faith. Make sure that if you are ordered to mediation you ask the judge to require the other side’s decision maker(s) be present. If you are offering privately to mediate with the other side, make that particular demand a pre-condition of agreeing to mediation.

I hope your mediation experiences are positive ones and you use these tips to your advantage even if settlement is not reached.

Assly Sayyar, Esq., Attorney at Law 

Licenced in California and Nevada.  Practicing in the areas of business and real estate transactional services and civil litigation.

www.vistalawyer.net  Tel: 760-542-8717

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Categories: Guest Bloggers | Legal

October 2013 11:44

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