April 9, 2020
Pitts Carr and Alex Weatherby
What is Mediation?
Mediation is a way to resolve disputes. In mediation, the parties in a dispute (like the injured person and defendant in a tractor trailer wreck case) agree to hire an independent, third-party to help them negotiate a resolution. This third-party is called a “mediator.”
You are likely familiar with mediation through watching the news. Countries at war sometimes use mediators from another neutral country to help them work out a deal. For example, Henry Kissinger, an American secretary of state, famously mediated the end of the Yom Kippur War between Israel, Egypt, and Syria. He would “shuttle” proposals between the countries. In taking the proposals back and forth, he would aim to find a common ground and push each person closer to resolving the dispute.
The format of mediation typically includes: (a) opening statements, (b) separate rooms for caucusing, and (c), hopefully, the negotiation of a final document resolving the dispute. In opening statements, “The parties have the opportunity to describe the issues, discuss their interests, understandings, and feelings; provide each other with information and explore ideas for the resolution of the dispute.” The lawyers, clients, and mediator are typically in the room together for the opening session. The lawyer for each side and, perhaps, the clients will speak to the other side about the case and their positions.
Following opening statements, the mediation breaks into separate rooms. Each party has their own room. The mediator shuttles between the rooms taking various proposals. In a catastrophic injury case, the mediator will typically be bringing monetary proposals back and forth. The mediator may offer advice, an unbiased view of the parties’ positions, and push the parties to find common ground.
If the mediation is successful, the mediator often helps the parties reduce their agreement to writing. The mediation agreement will generally include the basic terms of the resolution. Often this will include a payment, a release, resolution of lien issues, agreement to dismiss the case with prejudice, and other essential terms.
In many cases, the court will order the parties to mediate before presenting the case to trial. The parties also can choose to mediate on their own. To select a mediator, the parties often pass back and forth names to find a person with whom they are all comfortable.
In our practice, we have found mediation to be a very beneficial tool. It is good for the parties to get a chance to speak to one another directly. It is helpful to have a neutral third-party look at the case and offer advice. There is a magic that often happens at mediation, when the clients and lawyers agree to focus on the case for an entire day in an effort to resolve their dispute.
Not every case that goes to mediation resolves, but every case that goes to mediation is helped. The parties will gain either a resolution or, at the very least, a better understanding of the other party’s position.