What is a mediation and how does it work?
Mediations are voluntary negotiations facilitated by a mediator. Even if you have been ordered by a court to participate in the mediation, you cannot be forced to settle. If ordered to mediate, you should follow the court’s instructions to engage in good faith negotiations.
The mediator might start with all parties in the same room and keep them together in an effort to arrive at a settlement. A more common approach is to send the parties to separate rooms and spend time with each party discussing the dispute and possible resolutions. The mediator then goes back and forth with settlement proposals until the parties either reach an agreement or an impasse. The mediation can be terminated by any party at any time.
What is the mediator’s role?
The mediator’s role is to impartially help the parties reach a voluntary settlement. The mediator is a neutral, but is not acting as a judge and cannot make decisions about the dispute. The mediator is not a lawyer for either side, and cannot give you legal advice or tell you what to do. The mediator might share thoughts about the strengths or weaknesses of your case; you can (but are not obligated) to consider the mediator’s assessment when evaluating your risks.
What should I bring with me?
Bring any documents or records that will help me understand the dispute. If you claim that your opponent owes you money, have an itemization of what is owed and documents showing why it’s owed. If you claim that property was damaged, bring photos. If you claim a contract was breached, bring the contract and any related correspondence.
If I offer to settle but my opponent refuses, won’t it look to the judge or jury like I don’t believe in my case?
Nothing that happens in a mediation can be admitted as evidence at trial. (There are a few rare exceptions, such as to prevent a mediation from being used to commit a crime.) That means the mediator can’t be called as a witness and neither you nor your opponent can testify about what happened at the mediation. I do not talk to judges about what happens during a mediation.
What happens if we reach a settlement?
Usually the terms of the settlement are put in writing and signed by the parties. The parties should do that themselves. The mediator might help with the format of the document, but is not acting as the attorney for either party or giving legal advice. A settlement agreement is a binding contract and can be enforced by a court. Even an oral settlement can be binding, but it’s a good idea to put settlement agreements in writing.
Carl Stich ADR 