WHAT IS MEDIATION?
Mediation is a voluntary process where the parties, joined by their attorneys, meet with a neutral person in an attempt to settle a dispute. Mediation affords litigants an opportunity to summarize their evidence and argue their legal positions in a confidential setting before an agreed upon neutral person who is experienced in evaluating the merits and settlement value of a lawsuit. The mediator decides nothing. Only the parties can agree to settle a matter and only they can set the terms of the settlement.
Mediation works. Not every time, but more times than not. Why? Because most litigated matters–no matter how contentious–eventually settle. Thus, it is usually in the parties’ best interest to mediate as soon as it is reasonably feasible to do so.
The parties choose their mediator, which is unlike a court action in which the parties have no say in the selection of the trial judge and minimal involvement in the selection of trial jurors.
Since the vast majority of civil cases settle before trial, the earlier a case settles through mediation, the less time the parties suffer the ordeal of litigating and the greater the savings of future litigation expenses. When a mediation succeeds, the parties set the terms of their settlement agreement and avoid the publicity and uncertainties of trial as well as the expenses and time delays associated with a prolonged appeal.
MY ROLE AS MEDIATOR
In my role as mediator, I will draw on my more than 40 years of experience as a litigation lawyer, trial judge and appellate justice. Over the years, I have learned that settling cases requires different approaches for different cases. For example, some cases have a better chance of settling if the mediator is more passive in listening, analyzing and gently guiding the parties to a resolution, while other cases may require the mediator to take a more active role in order to facilitate the goal of reaching mutual agreement. One of the challenges facing a mediator is determining how active a role the mediator should play.