Mediations Have Benefits and Traps!

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Our office has participated in over one hundred mediations involving litigated disputes and cases that have proceeded through agreement to a mediation prior to a lawsuit being filed. Some of the cases that we have mediated involve personal injury, premises liability (falls/trips/slips/dangerous conditions), wrongful death, industrial accidents, family law disputes (divorce/property/child custody/modification), motor vehicle accidents, uninsured and underinsured motorists claims, truck accidents, medical negligence claims, claims involving intoxicated drivers, commercial litigation and other claims involving injury and death cases.

Mediations are a settlement conference. The parties to the dispute can agree on a mediator or the court can order the parties to mediate with a specific mediator. Most cases involve the parties agreeing on a mediator. Most judges prefer the cases mediate prior to trial, and in many instances the court will order the parties to mediate prior to trial. There are usually multiple cases set for trial in the same court at the same time, and courts have given trial setting preference over cases that have been through mediation. Even a failed mediation is usually time well spent.

Mediations are usually a half day or full day. We have had mediations last from early morning to late at night, and have had some conclude after an hour. Our office has seen that most of our mediated cases settle, some during the mediation, and some after the mediation. The cases that don't settle typically proceed to trial. The cases that fail to settle during a mediation benefit from the experience. A mediation can educate the lawyer and the client as to the strengths and weaknesses of a given case. A mediation also allows an attorney to spend an extended period of time with their clients, which is beneficial in the presentation of the case at trial.

Most mediators are attorneys and many are former judges. Most mediators have significant courtroom experience which gives them good perspective on the issues in the case that is being presented to mediation. The parties typically pay the mediator a set fee that varies according to the dispute in question, the mediator selected and the length of the mediation. The mediator gets paid no matter the outcome, so their fee is not dependent on a settlement of the dispute.

The mediator does not have the authority to determine the outcome. An arbitration is a different procedure and the arbitrator does have the authority to determine the outcome.

Benefits of a mediation include the opportunity to resolve the dispute short of trial, a more relaxed setting than a courtroom in trial, the client gets the perspective of the mediator on the strengths and weaknesses of a case and the client has the opportunity to resolve the case under their terms and not the terms of a judge or jury.

There are some mediators that have skills for handing emotionally charged cases and some mediators have skills that pertain to the particular legal issues involved. The selection of an appropriate mediator for a specific case is important. I haven't had an experience where I thought a mediator was unfairly biased for or against my client. I have had experiences where I have thought a particular mediator wasn't the best choice for my client's case. Mediators typically will point out the weaknesses of a given case to both sides. This can be beneficial to both the client and attorney in evaluation of the potential trial outcome of a case.

There is a great risk in mediation, one that I haven't seen much discussion about. At the end of a mediation that results in a settlement, a formal settlement document is drawn up to document the terms of the deal. This document is sometimes called a Rule 11 Settlement Agreement, which is simply a written agreement signed by the parties and attorneys. The agreement is binding and enforceable.

At the end of mediations, whether a half day or a full day (or longer), people get tired, emotions can be frayed and mental numbness can set in. Sometimes folks aren't totally happy with the deal. There are times where attorneys and parties have to catch a plane, others have to get home for their kid's sporting events and sometimes the mediator has to get the deal done because he/she has a bunch of people sitting out front to start another mediation.

The settlement document has to accurately reflect the terms of the deal! The settlement document has to accurately reflect the terms of the deal! This is critical. Some cases may only have a couple of significant terms in the deal, and others may have dozens. At the end of the day when everyone is tired, wants to and/or needs to leave it is critical to be sure the final document is accurate. Typically the mediator has a form and he/she fills in the terms of the deal. At times, the attorneys will draw up the deal. I have forced myself into a quite zone, mentally and physically, to read and re-read settlement agreements. It isn't uncommon to edit the document in this process.

What brought this topic to mind was a courtroom experience this week. While I was waiting for my case to be called to the bench, a group of attorneys and a mediator approached the bench and explained a problem to the judge. An attorney said they spent about six hours negotiating a crucial term in a mediation, and when the mediator drew up the agreement, somehow this term got left out of the settlement document.

The attorney that benefited by the mistake was trying to take advantage of the mistake. The judge was not pleased with the attorney that was trying to benefit by the mistake in the settlement document and told everyone to go out in the hallway and work it out in 15 minutes or less. It took about five minutes and everyone came back in and said the issue was resolved. There are usually agreements contained in the mediation agreement that offers a remedy to a disputed mediation agreement (another mediation or arbitration). In any event, it usually benefits all involved to correct any undisputed mistakes in an agreement without getting the court involved. The attorney in this instance that was trying to benefit from an undisputed mistake in the mediator's drafting of the agreement not only lost the battle but likely hurt his reputation with the court and attorneys for taking this course of action.

All in all, mediations have proven to be great tools in resolution of cases. Frequently, just getting everyone in the same place at the same time to focus on the same case is what it takes to resolve a case. If the case does reach an agreement, don't be in a rush to get out of the office until the settlement document looks totally in line with the terms of the deal.