Gimme 5: What Every Lawyer Should Know about Mediation
by Joel Grossman
(County Bar Update, May 2005, Vol. 25, No. 5)

 

Gimme 5: What Every Lawyer Should Know about Mediation

 

By Joel Grossman, a mediator affiliated with ADR Services, Inc. in Los Angeles. He can be reached at www.grossmanmediation.com or (323) 933-1916. The opinions expressed are his own.

 

1. What is Mediation?
Mediation is an informal process of dispute resolution in which a neutral mediator assists two or more parties in settling a dispute. In many, but not all, cases the parties are in litigation and seek the help of an unbiased third party in settling the case. In other cases the dispute has not yet led to a formal lawsuit and is settled before a lot of attorney fees have been incurred. Mediations can last for several hours or even several days, but it is common for a mediation to last for one day. Most of the mediation consists of the mediator going back and forth between the parties until all sides agree upon a settlement.

 

2. The Mediator's Role
The mediator is not merely a messenger bringing offers and counteroffers from conference room to conference room. Rather, the mediator actively assists each party in evaluating its case. For most parties, this is the first time that a completely neutral person is evaluating the case, and the mediator's unbiased views may be helpful. The mediator also may suggest an appropriate range for settling the case, although all decisions are the parties' own.

 

3. Mediation Confidentiality
The statements made by parties to each other or to the mediator are protected under the confidentiality rules in the California Evidence Code Sec. 1119 et seq. The code declares any such statements inadmissible in any subsequent procedure should the mediation fail. This rule encourages the parties to speak openly and candidly about their cases and not worry that comments or offers will be used against them if the case goes to trial. It is important to note, however, that mediation confidentiality is not absolute. While a statement made in mediation cannot be used in a subsequent trial, nothing prevents a party from disclosing the statement to other persons or to the media. If the parties want to be sure that all statements made in a mediation will not be made public in any manner, they will need to enter into a separate confidentiality agreement and not rely solely on the provisions of the Evidence Code.

 

4. How Do I Prepare for a Mediation?
Preparing for a mediation is in some ways like preparing for a trial or arbitration: Lawyers have to be familiar with the evidence in the case and with the controlling law. They will need to respond to the mediator's questions about their legal position and to justify their settlement position. Beyond this basic preparation, lawyers need to prepare their clients for the mediation process. For example, it is critical that the clients understand that mediation is a process of negotiation and compromise, and that the final settlement may bear little resemblance to the parties' opening offers. For the mediation to succeed, each party's counsel needs to prepare its client with a realistic evaluation of the case and make sure that the parties don't fall in love with the opening offer.

 

5. Getting the Deal in Writing
Mediations can take a long time, and sometimes the parties may not reach agreement until late at night when everyone is tired, hungry, and grumpy. The temptation to document the deal the next day when everyone is fresh may be overwhelming. This would be a huge mistake. No one should leave a mediation with nothing more than an oral agreement and a handshake. It is way too easy for a party to back out of a deal that is not documented in writing. Optimally, one of the parties or the mediator has a "fill in the blanks" settlement form that can be filled out quickly. But even if no one has brought such a form, the parties need to sign something before leaving, even if it's a handwritten list of deal points on a yellow pad. To be sure that the agreement is enforceable, the parties should include language such as this: "This is a binding settlement agreement, enforceable under Code of Civil Procedure Sec. 664.6." Then put in the essential points: the defendant will pay $x to plaintiff, the plaintiff will execute a release, and so forth. In most cases, such a bare bones agreement can be done quickly, and it is well worth the effort. Nothing could be more frustrating than working all day to achieve a settlement and discovering the next day that there isn't a settlement after all.

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