The purpose of the mediation process is to assist the parties in negotiating a settlement that is acceptable to both sides. The process is completely voluntary, and either party may withdraw at any time. If a settlement is not reached, the parties leave in the same position they came; the last offers and demands should not be considered the "floor" or the "ceiling" for future negotiations. But if a settlement is reached, it becomes a binding contract on both parties and neither can withdraw if there is a change of mind later.
Prior to the mediation, you may submit any written materials you want the mediator to consider or you may think helpful. This should include a brief description of the facts of the case from your point of view. Additional documents may also be attached.
In personal injury cases, medical records or excerpts from them are usually helpful. Highlighting important entries is perfectly acceptable. Copies of contracts, deposition pages, important correspondence, copies of pleadings, and expert reports may also be appropriate, depending on the case. Opposing counsel should discuss these submittals to avoid duplication.
The papers should be sent to the mediator at least three days prior to the mediation. At the same time that you send the materials to the mediator, send a copy to opposing counsel. If there are confidential matters that you want to submit to the mediator, but don't want to reveal to the other side, these can be submitted in a supplementary statement. The supplementary statement should be sent along with the other materials, but in a sealed envelope. Of course, a copy is not sent to opposing counsel.
The most important requirement for successful mediation is to have all of the important players present. The plaintiff should be there along with his or her lawyer and any persons on whom he or she is going to rely for advice. If the defendant's settlement is going to come from an insurance company, a representative with full authority should be present. In addition, if there are important third parties, such as lienholders, please do whatever you can to encourage them to be present or send representatives to the mediation.
The process. Mediation begins with a brief opening meeting with all parties and their attorneys. The attorneys will give a brief outline of their cases at this time. The parties may also speak if they desire. This is not an opening statement such as would be made at trial, or an argument such as would be made to a Judge or jury. Aggressiveness, argument, and grandstanding are rarely helpful. If the case goes to trial, that will be the time for vigorous advocacy. This is the time to help the other side to understand the facts of your case and to listen to and assess the strengths of the other side.
After the opening session, we will split into separate rooms for each of the parties. We call these "caucuses." The mediator will meet with the parties in the individual caucuses. The mediator will remain neutral but, if asked, will give an independent evaluation of the case and make suggestions for possible settlement. Anything said to the mediator can be kept confidential, but it is important that you make clear those portions of the discussion which are to be kept in confidence.
If settlement is achieved, we will get together again briefly at the end of the session to make sure that everyone's understanding of the settlement is the same, and to work out details such as who is to prepare settlement documents, when the checks can be expected, and so on.
Settlement in dollars cannot undo an injury or bring back a loved one, but unfortunately, sometimes money is the only way to compensate for injury. If both sides are realistic, almost every case can be settled. Neither side wants to settle if the only way to do so is "giving away the farm"; both sides are willing to take the case to trial if a settlement cannot be reached which is more advantageous than trial.
Mediation is based on the premise that when costs, time, and stress are considered, settlement is almost always best for both parties. I am looking forward to meeting with you.
Very truly yours,
Copyright Scott Daniels 1994