When those of us who are now senior lawyers began our legal careers, we heard little, if anything, about mediation. Law schools did not offer courses on mediation. Continuing legal education courses rarely discussed mediation. As we moved through twenty five or more years as practicing lawyers, we got along quite well without mediation. We settled most of our cases and tried the rest of our cases to a judge or jury. Things were good, but they could have been better with mediation as an available resource. Mediation is a great way to resolve disputes without trial in almost all areas of the law. Mediation is becoming more prevalent in many areas of civil law, especially in personal injury and wrongful death cases. Other areas where mediation is less prevalent are the areas of probate, real estate and business law, areas in which many senior lawyers practice. Probate, real estate and business disputes are well suited for mediation because they frequently involve parties who are acquainted with or related to other parties by blood, marriage or business relationship. Emotions frequently enter into negotiations to settle probate, real estate or business disputes. Mediation can be a helpful resource in cases where emotions are interfering with the party’s good judgment.
Since mediations are not adversarial, they are a great way for parties in all types of cases to openly discuss and analyze their case and work to a resolution without the expense, delay and uncertainty of a trial.
The structure of mediations may vary from case to case and may vary with different mediators. The mediation process will usually begin when the lawyers agree that a mediation session may be helpful in resolving their case or when a judge orders mediation. The lawyers will then select a mediator who they feel has the experience and ability to help all parties analyze the case and work toward a fair resolution. Prior to the mediation session, most mediators request a submission from each party which discusses the case and assists the mediator to understand the issues in the case. Depending on the nature of the case, these submissions may be brief or quite detailed. Lawyers should trust the mediator and feel free to discuss concerns or problems with their case. The communications between a lawyer and the mediator are strictly confidential and remain that way throughout the mediation unless the lawyer authorizes the release of the information to other parties to the mediation. Ex parte communications between a lawyer and mediator are permitted and are encouraged. Ex parte communications prior to or at the mediation are an integral part of the mediation process.
At the mediation session, it is important to have all parties present who are necessary to make decisions regarding settlement. The mediation will usually begin with a brief joint session with the parties and attorneys to discuss the process and allow the attorneys to make opening remarks. Many lawyers choose to waive opening statement to avoid setting an adversarial tone.
After the joint session, the mediator will meet with each party in separate meetings or caucuses. In those meetings, the parties and the mediator will discuss the case and that party’s settlement position. The mediator will shuttle from party to party with information to be shared by the parties and with the changing settlement positions. After continued discussions and settlement proposals, the parties will frequently come to an agreement and settlement is reached. It is usually desirable to prepare a brief settlement statement to be signed by the parties.
Hopefully, you have had many enjoyable and successful years practicing law. Even if you have done well without mediation in your practice, you may want to use mediation as a resource as you continue your legal career. You may find that mediation helps to make your practice even more successful and enjoyable. ■