A successful mediation can resolve a dispute and end costly litigation. Mediation, however, is nonbinding and carries its own expense to the parties in time and fees, and if not handled properly can be a waste of time and money. To be productive, the process requires parties to actively engage in the details of the procedure, become familiar with the merits of the case and conduct themselves in a manner suggesting they intend to work toward an equitable final result. The suggestions discussed below are intended to aid mediation participants in meaningfully participating in the process with the goal of avoiding traditional methods of litigation.
Step 1: Begin mediation early (if possible). Mediation can be initiated at any time, but opting to appoint a mediator at the inception of the case has significant advantages. First, litigation costs can be kept to a minimum if parties avoid lengthy discovery proceedings and other litigation related expenses. Controlling these costs may improve the likelihood that the settlement is followed through. Moreover, early mediation affords the parties the opportunity to constructively resolve their dispute before proceedings become adversarial. Conversely, a mediation that begins too early may be an attempt to access information through “unauthorized” discovery and should therefore be entered into judiciously. Also, if mediation proceeds before the parties are familiar with the merits of the case, resolution is unlikely.
Step 2: Choose an appropriate mediator and mediation style. Mediators have various skills, methodologies and areas of expertise. Similarly, mediation styles should comport to the prevailing issues and the objectives of the parties. In facilitative mediation, the mediator is a passive participant whose primary function is to allow the disputing parties to openly address their issues and identify suggestions for resolution. In evaluative mediation, the mediator participates in the dialogue, expresses opinions on the merits of the case and advises on possible jury outcomes. The mediator in this scenario usually has a joint meeting with all parties, and then meets privately with each party to encourage a resolution.
Step 3: Understand your case thoroughly and prepare an effective mediation statement. Prior to mediation, parties should be knowledgeable about the facts of the case and the claims they are asserting, the strength of those allegations, the amount of damages they might be entitled to and the potential outcomes if the conflict is not resolved through mediation. The parties are responsible for preparing and submitting a mediation statement which effectively summarizes the issues, sets forth the claims and suggests resolutions to the dispute.
Step 4: Approach the mediation with the desire to reach an agreement. The parties should enter into a mediation proceeding with the intention of reaching a conclusion. It is useful for parties to prepare a list of items they anticipate in a settlement so that they can focus on their overall goals for the mediation.
The outcome of a mediation depends largely on the expertise of your counsel. Shane Coons has experience in all forms of alternative dispute resolution and can help you achieve the best possible result in your mediation proceeding. Call Shane Coons at 949-333-0900 or visit www.ShaneCoonsLaw.com to learn about your options for dispute resolution.