How to Prepare for Mediation

I. What is Mediation?

A mediator is a go-between, someone who helps two parties in dispute reach an agreement. A mediator is necessarily neutral, and cannot take sides. The mediator is sometimes referred to as neutral third party.

The mediator is not a judge. He/she cannot give legal advice. The mediator’s goal is not to have a winner and a loser, but to have two winners. In a meeting where confidentiality is the rule, the mediator helps the disputants reach an equitable settlement agreement.

Who is Who, and What is What?

Attorney: Legal counsel, licensed by the state, who represents the Plaintiff or Defendant.

Caucus: A private meeting of any two or more people involved in a mediation.

Cause: Another name for a court case, a cause of action. A cause is “styled” with the name of the Plaintiff and Defendant: Somebody vs Somebody-else.

Defendant: The person against whom the suit is brought.

Et al: Short for “and others.”

Lawyer: Another name for an attorney.

Litigation: Action in court regarding a lawsuit. A lawyer who practices law in a courtroom is called a litigator.

Party: A Plaintiff, Initiator, Defendant, or Respondent. They are all parties to the conflict. A corporation or other entity can initiate a lawsuit or action that requires mediation. In that case the corporation is a party.

Plaintiff: The person who brings a lawsuit against someone else.

Pro se: The Plaintiff or Defendant in a lawsuit who represents himself without the aid of an attorney.

Mediation in the Court System

Courts use mediators to prevent overload in the court systems and to save everyone concerned time and money. In Dallas civil courts, for example, 90 per cent or more of lawsuits filed are settled by the parties or their attorneys in negotiation or in mediation and never go to trial. The courts are still busy. If it were not for mediation, more courts, judges, and courthouses would be necessary. Mediators help settle all kinds of civil cases and family cases such as divorce, property settlement, and child custody. Family court judges send cases to mediation where child custody, property settlement, and modification of previous court orders are settled.

Usually attorneys try to settle a lawsuit before trial. If they do not reach a settlement, then the case goes to mediation. The professional mediator is expected to do what the parties could not do. He/she is a specialist in getting people together and usually facilitates a settlement. Those few not settled then go to trial.

An unscientific survey found that 70 per cent of people were satisfied with their settlement in mediation while 90 per cent who went to trial were not satisfied with the decision of the judge or jury in civil cases.

Mediation saves time and money for the Plaintiff, Defendant, and the Court. When you settle in mediation, you know exactly where you stand. If you go to trial, you never know exactly how it will turn out. Juries are like voters and footballs; you never know which way they’ll bounce. Judges are human, and no two are exactly alike.

A great benefit of mediation is that both sides have an opportunity to have their say, unhampered by courtroom procedure. Your attorney is your strategist. Follow his/her advice on whether to speak during the mediation. If he/she suggests you tell your side of the story, no one will say, “Just answer the question, yes or no,” as might happen in a courtroom. Often when a person explains all the circumstances of a dispute, the other side begins to understand, and it is a step toward a settlement agreement.

In cases where both parties have lawyers, attorneys for both parties and the mediator agree on a date for mediation. In some cases one side has an attorney and the other doesn’t. A Plaintiff or Defendant representing himself is called pro se.

Getting sued, being the Defendant, is bad news. It costs money, time and trouble. Suing someone, being the Plaintiff, costs money, time and trouble. There is no way to avoid it. Usually the best money either Plaintiff or Defendant can spend is for a good lawyer.

Other than in small claims court (Justice of the Peace Court), no one should file a lawsuit without a lawyer any more than he/she would go to surgery without a doctor.

Your lawyer is your champion. He/she will fight for you. But you have to give your lawyer all the needed information. Don’t expect your lawyer to always know what to ask for. It’s better to offer too much information than not enough. It’s better to bring too many documents to a mediation session than not enough. To say, “Oh the bank has that on record,” is not nearly as convincing as handing someone a cancelled check with their signature on it.

Often a party will make a statement about an invoice or contract, but can’t produce the document. If you hope to have all your ducks in a row, give your attorney all the documents he /she might possibly need, or bring them to the mediation session yourself.

Many times one party will make a statement of fact. The other party says, “Show me.” If the allegation can be backed up with a document, you’re on your way to settling the dispute.

A typical exchange of unprepared people is: “You say you paid the bill. Do you have a receipt or cancelled check?”

Another one is: “Are you sure my client made those charges? Do you have some documentation?”

The other side would be much more convinced if you could show them the cancelled checks or charge slips.

One of the impediments to settlement in mediation is unrealistic high expectations. A Plaintiff, emotionally involved, spills out his story to his attorney. It’s a chinch to be a winner, the Plaintiff convinces the lawyer. The lawyer, having heard only one side of the story, tells the Plaintiff to expect a big settlement or court judgment.

The Plaintiff goes into mediation all pumped up and expecting great things. During the mediation things are brought hp he hadn’t realized earlier. The other guy does have a leg to stand on. The Plaintiff’s lawyer recognizes that the case is not locked up after all and tries to convince his client to settle for less.

If you’re that Plaintiff, you must fight your way through emotion and a wounded sense of justice, and force yourself to face reality. Your lawyer hasn’t turned on you; it’s just easier for him to change gears when the road ahead suddenly goes uphill, because he has had more experience.

Sometimes the principle of the thing turned out to be a killer. “It’s not the money; it’s the principle of the thing,” sounds very honorable, but can be very costly. For example: You’ve been sued. The Plaintiff is a jerk. His case is really full of holes. You go to mediation and negotiate with him. Finally, he says he will settle for $1,000. You know he’s wrong. If you pay the money, justice will not be served, so you decide to fight because of the principle of the thing. You spend $10,000 fighting him, and finally prevail in court. It’s contrary to the American ideal of fair play, but you’d be $9,000 better off to have paid the $1,000 nuisance money. Facing reality isn’t always the most ideal, but it usually is the most practical.

The Plaintiff files a lawsuit and sends a copy of the original petition to the Defendant so he will know what he is accused of and what the Plaintiff is asking the court to do. The Defendant answers the accusations in the Plaintiff s petition. The judge sets a trial date and appoints a mediator. The mediator contacts both the Plaintiff and the Defendant and arranges a date and time for the mediation. If they have lawyers, all communication is directed to the lawyers. If the parties can’t agree on a mediation date, the mediator sets the date.

Each party must attend the mediation with full authority to settle and pay an equal share of the mediator s fee. When the mediation is scheduled, the mediator usually asks for a small scheduling fee. Then when the parties appear for the mediation, they pay the balance of the mediation fee. If the case is settled prior to mediation, the case is dropped, somebody dies, or anything else happens that prevents the mediation from taking place, the scheduling fee becomes an administration fee to pay the mediator for the time he has spent on the case.

At the mediation, usually held in the mediator’s office or other central location, the Plaintiff and his attorney sit on one side of the table. The Defendant and his attorney sit on the other side. The mediator sits at the end. The mediator suggests that the proceedings be informal, and that first names be used. He explains that everything in the mediation is confidential, that nothing that is discovered in the mediation can be used in court later, and the mediator cannot be called to testify. No stenographic record or recording is allowed. Both parties sign a confidentiality agreement. Everyone is free to speak their mind without fear of future recrimination.

Each side has uninterrupted time to present his/her case. The Plaintiff begins by stating his position and demands. Then the Defendant states his position and/or demands. The mediator reiterates these positions to make sure he understands what each party is saying, and that each party understands what the other is saying.

Then both parties are asked to suggest possible terms of settlement. These are negotiated back and forth until a settlement agreement is reached. When both parties agree on the settlement, one of the attorneys writes up the agreement, and everyone signs it.

Often one party wants to confer with the mediator in private. They go into another room for a caucus. Other caucuses might be between a party and his lawyer in private. The lawyers might want to caucus in private without the parties and mediator. Any combination of parties, attorneys, and/or mediator might caucus.

Sometimes when there are bad feelings between the Plaintiff and Defendant, the mediator will separate them right after the preliminary meeting, putting each party in a different room. Then the mediator confers privately with each party and conveys its offer of settlement to the other.

If a settlement is not reached because of a lack of information or documents, the mediator may recess the mediation and reconvene at a later time.

If there is an impasse, and no settlement is reached, the mediator may stay in contact with the parties and try to get them to settle right up until the trial date. Sometimes a party will refuse the best offer in mediation, then after a few days thinking about it decide to reconsider. His/her attorney then calls the mediator who continues the negotiations over the telephone, and often achieves settlement.

Mediation involves negotiation, which is most effective if one person is the main strategist. It's much like driving a car. Only one person should have hold of the steering wheel. Trust your attorney to do the driving. He's been down that road before.

Joe B. Hewitt, Mediator, 684 Prince Lane, Rockwall, Texas 75087, 972-771-8208; info@joebhewittmediator.com