A mediation is a settlement conference led by a neutral third-party, the mediator. The mediator is often, but not always, a lawyer. In Texas, most courts require you to go through a mediation before you can get a trial in your case.
Generally, the mediation starts with an opening session where all the parties are present. In many cases, when the defendant has insurance, the defendant will not appear, but an insurance adjuster (who is really deciding the amounts to be offered) appears on the defendant’s behalf.
The mediator will start the opening session with his introductory remarks. Those remarks will describe the mediation process and will often include a discussion of some of the advantages of mediation. Depending on the mediator, the remarks may include statements similar to the following:
Mediation is your chance to have input on the resolution of the case without putting it into the hands of 12 (or 6) strangers.
A good settlement is one where both parties end up upset. That means the defendant paid more than it wanted, and the plaintiff accepted less than it wanted.
Don’t underestimate the emotional value of resolving the case. If you settle the case, then tomorrow can be the first morning in months (or years) that you wake up and don’t have to worry about this lawsuit.
After the mediator finishes his remarks, the parties will have an opportunity to make their statements. Generally, the plaintiff’s attorney will go first, and the defense lawyer second. Many times, these sessions become posturing sessions so, no matter what side you’re on, you will hear statements from the other side that will make you mad. When the parties start posturing, it seems to push the parties further away from resolution than towards it. Therefore, in our cases, we generally try to keep our remarks short and try not to make any unnecessary inflammatory remarks. Additionally, in many cases, we request that the mediator not even have the opening session in an effort to prevent this problem from occurring.
After the parties have made their statements, then the mediator will separate the parties into different rooms. The mediator then goes back and forth between rooms and engages in shuttle diplomacy. The first few sessions may involve more in-depth discussions about the case. The mediator may ask you to evaluate your strengths & weaknesses. He may play a devil’s advocate to push and probe to make sure you’re fairly evaluating the case.
In the later sessions, there is less discussion, and the mediator is often just going back and forth trading offers.
The mediation ends when a settlement is reached or when the parties reach an impasse.
A mediation is not an arbitration. A mediator doesn’t have the authority to force parties to settle a case or to decide a case. All decisions about settlement are left up to the parties. Having said that, some mediators will provide suggestions on what a good settlement number should be, but those suggestions are not binding on the parties.
One of the benefits of mediation is its confidentiality. It’s generally confidential in two ways. First, what is said in mediation can’t be used at trial. For example, if you’re trying to resolve a case and make some concession, the other side can’t argue at trial that you conceded that point at mediation. Second, the communications you make to the mediator are confidential. The mediators should not go tell the other side anything you said unless you authorize the mediator to do so. The confidentiality isn’t 100%. There are some rarely-applicable exceptions, and some mediators don’t seem to treat their duty of confidentiality as seriously as others.
There are some rules we typically give our clients about mediation.
- Bring something to read or do. A lot of the mediation will be spent with the mediator visiting with the other party. You will want something to do during this time or the time will pass slowly.
- Dress in something comfortable, but appropriate. I generally suggest that you dress as you were going to work.
- Be prepared to be tired. Mediation is an emotionally draining process. At the end of the day, you will be tired even though you will have spent the entire day just sitting around.
If you want additional resources to understand the process, you may read the following (but remember that their information isn’t specific to Texas so the processes described may be a little different):