The mediator is a facilitator, not a judge or jury. The mediation forum is structured to allow an exchange of information, and bring people to the table. It also gives the parties an opportunity to (confidentially) discuss alternate outcomes and explore the strengths, weakness, risks and probabilities before a judge or jury with a neutral third party. This exploration and discussion leads to consensus and good decision making.
The beauty of the mediation process is that control over the results remains in the hands of the parties- and not the mediator (or judge or jury). It’s amazing to see the process work- from flashes of understanding, to adoption of a resolution that works for everyone.
For the most part, a mediated result is actually better. When you go to trial, someone gets a judgement. Judgments are subject to appeal, which can take years to resolve, and could lead to a second trial. In mediation, the parties come to a decision, enter into a written agreement, and that agreement is enforceable in court, without a trial. There are no appellate rights from a mediation. Your case is over.
Fair and equitable settlements come when there is something to gain for everyone. It’s a common misconception that insurance companies won’t give the “best deal” until the last minute before trial. Nothing could be further from the truth. The insurance industry knows that there are certainties in life. The first is that the longer a case is opened, the more it costs. The same goes for a plaintiff. The more steps taken down the path to trial, the more a case costs, which can affect the net recovery and the emotional toll of litigation. From the insurance side, an open case costs attorney fees, expert fees, court fees, time for adjusters to deal with claims and lawyers, and ultimately, the risk of having to pay more than the amount that they could have paid in the first place by settling promptly. Insurance carriers know that the only good case is a closed case. These factors work in everyone’s favor. While mediation can occur at any point in the life of a dispute, the ideal time is when the parties have exchanged enough information to make a decision.
Anyone that’s been involved in a trial knows that having one’s “day in court” is remarkably anti-climactic. The first anti-climax comes when the rules of evidence restrict what can be said. You don’t generally get to speak freely, or speak your peace in trial. Through a complicated process of examination, cross-examination, rebuttal and final arguments, skilled lawyers try to express your feelings, demands and desires to 12 strangers, hopefully making your case in a way that a jury will understand (and go your way). In mediation, the parties are actually encouraged to express themselves- respectfully, thoughtfully and thoroughly. When both sides are able to communicate openly, reach common ground, and are able to understand the relative risks and benefits, disputes can be resolved, and the parties ultimately feel that the results are more fair, reasonable, and result in decisions that everyone can live with.
I highly recommend having legal counsel assist in preparation and with you at the mediation conference to make the process as efficient as possible. Mediations are conducted with or without attorneys, but it’s important to remember that as a mediator, I can’t act as attorney for either party, and I don’t give legal advice to parties during a mediation conference. As a neutral mediator, my job is to encourage you and another party to see and understand every aspect of your dispute from every angle- including the good, the bad and the ugly. While the mediation process lessens the intimidation factor of litigation, it is wise to have an attorney advising you on your rights and available remedies.
Confidentiality is a critical pillar in making a mediation work. As part of my practice, I have everyone attending a mediation review and sign a confidentiality agreement before we begin. California is one of the states that encourages the mediation process and protects it. Confidentiality is an important factor in building trust with the mediator, trust in the process, and allowing parties to fully express themselves without the risk of something ‘coming back at them later’. Evidence Code section 1119 specifically states that “No evidence of anything said for purpose of mediation or mediation consultation is admissible or subject to disclosure in arbitration, administration adjudication, civil action of other non-criminal proceedings” this includes all communications, negotiations, settlement discussions, and writings submitted in support of the mediation process.
Furthermore, when in private caucus (a meeting with the mediator and each party individually) I will ask you to clarify what can be shared with the other side, and what you would like to keep confidential. This allows us to explore your strengths, weaknesses and desires without fear of the other side taking advantage of information.
The parties generally split the fees for mediation evenly. This avoids any question of who the mediator is working for, and any possible conflict of interest.
Mediation conferences happen in an informal setting, at a location that all parties can agree on. If the parties prefer, I can hold mediation conferences in the offices of one of the lawyers, which is the most common. Mediations are usually in a facility that has a conference room that can hold all parties and lawyers, and small conference rooms for small private caucus meetings with each party and their attorney. I have facilities available throughout the San Francisco bay area, and can arrange for facilities in outlying areas where necessary.
Copyright © 2019 Appleton Mediation - All Rights Reserved.