If you are a party to a California lawsuit and the judge has ordered your case to mediation, you may be wonder what to expect at mediation. This article is a road map to how mediation works.
What Is Mediation?
Mediation is a process that can help you reach a settlement without the stress and expense of a full-blown trial.
Mediation is a series of confidential discussions guided by a mediator between the parties to a lawsuit. The mediator doesn’t decide who’s right or wrong, and they won’t force you into a settlement. Their job is to help everyone communicate, understand each other’s perspectives, assess the costs/risks in proceeding to trial, and explore solutions.
Mediation offers a way to conclude a costly and emotionally draining lawsuit, allowing you and the other side to agree on a settlement rather than leaving it to a judge or jury who, frankly, will never understand your case quite as intimately as you do. Additionally, studies have shown that when a parties reach a settlement, the plaintiff usually gets more money, and the defense pays less money, and that defendants are statistically more likely to pay a settlement agreement reached at mediation than a court judgment.
The Power of Privacy: What’s Said in Mediation Stays in Mediation
One of the most important things to know about mediation in California is that it’s confidential. This means that anything you say, any offers you make, or any documents created for or during mediation cannot be used against you in court later if your case does not settle. This encourages everyone to be open and honest, allowing for more productive discussions.
From Boardrooms to Breakout Rooms: Mediation in the Digital Age
Pre-covid, mediations took place in a physical office building, with each party and lawyer in a separate conference room with the mediator moving between conference rooms. However, much like many aspects of our lives, mediation has largely moved online. Today, most mediations occur on Zoom.
This shift has made mediation convenient. You can participate from your home or office, saving travel time and costs. Zoom’s “breakout room” feature perfectly mimics the private rooms of an in-person mediation, allowing your side to have confidential discussions with your attorney and the mediator, just as if you were in separate conference rooms.
Private Conversations: Caucus Sessions Explained
In the past, mediations would start with a “joint session” where everyone (all parties, their attorneys, and the mediator) would be in one room to present their side of the case. While this can still happen, most California mediations now begin in caucus sessions. This means you will likely not see the other party and their lawyer during your mediation session. (If this is something that is important to you, you should inform your lawyer/mediator.)
Here’s how a mediation day generally runs:
- Starting Out: When your mediation begins, you, your attorney, and the mediator will likely join a private virtual breakout room. If you’re on the defense side and represented by an insurance company, their representative (often an adjuster with settlement authority) will be in your room too.
- Setting the Stage: The mediator will start by welcoming everyone, explaining the ground rules (like confidentiality), and outlining their neutral role. Your attorney will then usually provide a summary of your case and what you hope to achieve. The mediator might ask questions to understand your situation better, including what you’re looking for in a settlement and any challenges that might stand in the way.
- The Negotiation Begins: Typically, your attorney (if you’re the one seeking compensation) will make an initial settlement demand. The mediator will then take this offer privately to the other side’s room. The other side will discuss it and then make a counteroffer, which the mediator will bring back to your room. This back-and-forth exchange is what much of the mediation process is about.
- The Mediator’s Role: The mediator isn’t just a messenger. They are actively working to help both sides understand each other, point out the strengths and weaknesses of each case, and explore creative ways to bridge the gap. They’ll help you critically evaluate your own case and consider what it would mean to settle versus going to trial. They’re looking for common ground and trying to find solutions that might not be immediately obvious.
It’s worth noting that if your case involves multiple parties (more than just two sides), there will be even more virtual breakout rooms, and the mediator will be busy moving between them all.
Patience is Key: Reaching a Resolution
Reaching a settlement can take time – anywhere from a few hours to a full day (8-10 hours), or even multiple sessions spread out over days or weeks. Don’t be discouraged if a deal isn’t struck immediately. The mediator is working to understand the nuances of the case and find opportunities for movement. They might help “unstick” negotiations when things get tough by suggesting new angles or helping parties see the bigger picture.
When a Deal is Made: Documenting Your Agreement
If a settlement is reached, the parties document the settlement, usually through a term sheet, which confirms and makes legally binding the general terms of the agreement. This means you’ve successfully resolved your case outside of court! Following the mediation, one of the parties to the lawsuit (usually the defendant) will take the lead in creating the more detailed and formal Settlement Agreement.
So, if the judge suggests mediation, embrace the opportunity to take control, save time, and find a resolution that truly works for you.
Click here to learn more about mediating with Jennifer Johnston Terando, R.N., Esq. https://yourrnattorney.com/mediation/
Interested in becoming a mediator? Click hear to learn about Jennifer’s training program: https: fortyhourmediationtraining.com/
