Malone & Nelson
Frequently Asked Questions on Mediation
Updated: Mar 25, 2020
How should I select a mediator? Look for someone whose experience and expertise will give you the best chance of resolving your dispute. But, you should always check your potential mediators references and reputation.
How should I prepare my client for a mediation? Make sure your client understands that mediation is a process. Discuss with your client the settlement value of the case. Obviously, the settlement value is different from what you may get at trial. It should be a range, not a hard and fast number. Also, try to determine your client’s goals. They may have nothing to do with the case or its value. Help your client look at the case from the other side’s perspective. Think about their goals and objectives. How should I prepare as an attorney for a mediation? Prepare a position statement that outlines the strengths and weaknesses of the case and gather all pertinent documentation, both good and bad. Also, give your case an honest settlement evaluation. What is your case worth if all goes well? What is it worth if nothing goes right? What are the chances of each? What types of materials and information should I send to the mediator prior to the mediation? Don’t send the mediator everything in your file. Pertinent pleadings, briefs, court rulings, evidence, and summaries that illustrate to the most important points are what the mediator needs. How does mediation work in domestic cases? Mediation can be very effective in domestic cases. Many times, the parties are going to be dealing with each other even after the present dispute is resolved. Having the ability and experience of working through the current dispute can help resolve those future ones even before they happen. Managing client expectations is critical to a successful domestic mediation. How does mediation work in civil cases? Many people assume that civil cases lack the emotion of a domestic case because they are likely only about money, but that is not true. People can be very emotionally invested in their civil case. A good mediator can help manage those emotions so that the case can be resolved. How does mediation work in appellate cases? Appellate mediation can be particularly challenging in that one party has likely already experienced a victory. However, that victory may be short-lived once appealed. Parties must have a good grasp of what is likely to happen on appeal. Can we continue a mediation to a later date if the case isn’t resolved in the first session? Yes. Often the attorneys will continue to negotiate the case after the initial mediation session. The matters addressed at the mediation give the attorneys a framework and the ability to continue negotiating. The mediator may or may not be involved. Or, it may become apparent in the initial mediation session that something else must occur or be exchanged or discovered or explored before the parties can continue to negotiate. In which case the mediation can resume once that happens. How much time should I allot for a mediation? The length of a mediation depends on many factors, such as the type and complexity of the case, and the parties experience and honest evaluation of it. But, mediation is a process. The process has to be respected and appreciated. A minimum of a half of a day should be allotted, but it could take a full day or more. A good mediator will be able to address the mediation as efficiently as possible. Where should a mediation take place? Generally, a mediation session should take place at a neutral venue so that neither side feels the other has some advantage. But, sometimes having the mediation in a location where a party feels secure can actually help the process. Can mediation be forced in a case? Judges can order a case to mediation. But, whether a case settles at the mediation is always up to the parties. While a judge can force you to the mediation, no one should ever force a settlement. Can a mediation agreement be changed? Generally, an agreement reached at mediation can only be changed by agreement of the parties. What types of cases can mediation be successful in? Virtually every civil case (including domestic and family matters) and even some criminal cases can benefit from mediation, which is simply a negotiation assisted by a third-party professional neutral. Why is mediation better than litigation? There are many advantages to mediation over litigation. If a settlement is reached at mediation, then both sides will have a say in the resolution of their dispute rather than putting that decision in the hands of a third party (a judge) or third parties (jurors). Mediation can also be more efficient, quicker, cost less, and offer resolutions that a court cannot. Are mediation proceedings confidential? Mediation should always be confidential. For court cases, it is generally required. And everyone involved should appreciate and respect the value of the confidentiality. What is the difference in mediation and arbitration? Arbitration involves a decision on the merits of the case by a third-party or panel of third parties outside of a court process. Mediation is simply a negotiation between the parties which is assisted by a third-party neutral.