Mediation: What is it?
Mediation is the forum where both sides are offered an opportunity to present their cases to an independent and neutral person (the mediator) who attempts to provide alternatives and options to settle the legal matter in dispute. In most cases, mediation is conducted after filing suit; however, we have mediated cases successfully prior to suit being filed. The mediator is usually another attorney or a retired judge. Attorneys must take extensive training and classes to help them develop the skills necessary to accomplish the goals of a mediator. Both parties are usually able to agree on a mediator or the court may appoint one.
Prior to the mediation the mediator is required to define and describe the following to both parties at the beginning of the mediation:
- The process of mediation;
- The differences between mediation and other forms of conflict resolution;
- The costs of the mediated settlement conferences;
- That the mediated settlement conference is not a trial, the mediator is not a judge, and the parties can retain their right to trial if they do not reach a settlement;
- The circumstances under which the mediator may meet and communicate privately with any of the parties or with any other person;
- Whether under what conditions communications with the mediator will be held in confidence during the conference;
- The inadmissibility of conduct and statements;
- The duties and responsibilities of the mediator and the participants; and
- That any agreement reached will be reached by mutual consent.
Once this has been explained, both parties will have an opportunity to present their side of the case. This is done to educate the mediator and communicate your position to the other side prior to negotiations. After this is completed, both parties will separate and the mediator will then deliver messages between the parties until the mediation is concluded in settlement or otherwise.
We have mediated cases involving auto accidents, premises liability (slip and falls), dog bites, and even workers’ compensation cases. Many cases settle in mediation and many do not. Mediation is not the only forum in which parties are allowed to negotiate or resolve the case. Often, if the case does not settle and mediation, it will help both parties narrow the major concerns of the case and allow them to resolve it at a later date. However, mediation may provide the last attempt to resolve your case without incurring the additional expenses and costs to continue litigating your case to the point of a jury trial.
In our many years of representing personal injury clients all across the state of North Carolina, we have found that mediation can be very successful tool in settling our clients’ cases. Our clients still have the power at mediation to control their destiny. The mediator cannot force you to settle your case but he or she can, in most situations, obtain the best offer from the other side. Mediation may provide the last attempt to resolve your case without incurring the additional costs necessary to completely litigate your case.