5 key items to understand about mediation

Parties involved in litigation should always keep an open mind about mediation at
every stage of litigation.  Cases that resolve without having to go through a trial or arbitration
can potentially save the parties a lot of time and money in litigation.

This article touches on five items parties need to understand about mediation.

Mediation is non-binding.

Mediation is a voluntary process in which litigants (or even parties prior to litigation)
agree to use a private third-party to help settle the case. People sometimes confuse
mediation with arbitration. Arbitration is when parties agree to use a private third-
party to hear their case, much like a judge, to make decisions about the case, and
eventually decide the case. Arbitration can be binding on the parties, and the
arbitrator actually decides who is right and wrong as a matter of law. On the other
hand, a mediator is not deciding any issues about the case, but is simply hearing
both sides’ positions, and then works with the parties to see if there is a potential
resolution that the parties would both agree to. The mediator has no ability to
decide issues of the case, or make any binding rulings about the case. The mediator
is only an unbiased third-party attempting to get the parties to consider a possible
resolution to the case.

Mediation takes place with a private mediator, usually not the court.

The parties voluntarily agree upon the selection of a mediator. Usually the mediator
has expertise in the area of the law that the case involves so that he or she can
move quicker into the substance of the parties’ disagreement. There are many
retired judges or lawyers that work as mediators. Some mediators are active
practicing lawyers that also have a mediation service established.
The mediation usually takes place at the mediator’s office. Normally the mediator
has the parties in separate rooms, and the mediator walks between the two rooms.
There are many mediations during which the parties will not see other side the
entire day.

Negotiations during the mediation are privileged and cannot be used
against either party during litigation.

California law prevents any of the negotiations or potential admissions made
during mediation from being brought up in court or during litigation. The rationale
for this rule is that the courts want people to be able to negotiate during mediation,
this involves some give and take. Therefore, in order to assist the mediation
process, any of the discussions or negotiations during mediation are prevented

from being used against the other party. This allows parties to discuss items more
freely during mediation in hopes of having a better chance at resolving the case.
However, it should be noted that if a party makes an admission during mediation,
the other party can still conduct discovery after the mediation and bring that
admission into the case through the standard discovery process. So parties should
follow their counsel’s advice about which facts to share during the mediation
process. But rest assured, the fact that one party agreed to offer a certain amount
to settle the case during mediation, this offer to settle cannot be brought up to the
jury later in the case as a way to establish liability.

The mediator’s only role is to get the case settled.

The mediator is not there to make friends, tell you if she believes you more than
the other side, or make a value judgment about the case or people involved. His or
her role is simply to get the case resolved. This usually means that a successful
mediator is able to have each party questioning the strength of their case. A
successful mediation usually means that both sides are unhappy with the
resolution.

Even if the case does not settle at mediation, it could still be a successful
mediation.

The parties need to understand that mediation is a process and it is hard to settle
cases in one day – even a long day – of mediation. Sometimes it is clear during the
mediation that the parties cannot settle the case. Sometimes it takes the mediator
working with the parties for weeks after the mediation to arrive at a settlement. If
the case does not settle, it is also beneficial for the parties to realize that maybe
they are still too far apart to agree to a settlement and there needs to be further
discovery and/or motions filed to narrow down the issues that are being litigated.