*Case Law Ltd. Extern and the University of California – Hastings School of Law Student, Class of 2024
What is mediation from a Plaintiff’s perspective?
Mediation is a type of alternative dispute resolution that allows the parties of a dispute to negotiate a settlement before a neutral third party. The third party, a mediator, guides and assists the parties by asking questions and helping the parties understand where the other side stands.
Going to a mediator shows that both parties are willing to forgo litigation if a mutual agreement can be reached outside of court. Pursuing dispute resolution through mediation is often more cost-effective, less timely, more flexible, and more confidential than continuing litigation. Mediation may occur multiple times if a settlement is not reached initially.
What exactly does mediation look like?
Both the parties, the parties’ attorneys, and the mediator will meet, either in person or remotely over videoconferencing software. In most cases, the mediator will place the two parties in separate rooms, interacting with them one at a time, but sometimes may begin the mediation all together in one room.
The mediator will privately ask the parties questions to determine the dispute, the desire to resolve the dispute, and the resolution the parties are willing to settle for. The questions are guiding, but the mediator will not take sides, only asking questions that will most likely lead the parties to an agreement.
The client is the only person who can agree to an offered settlement. Attorneys may provide legal advice but cannot settle without the client’s consent.
How should a client prepare for a mediation?
The best way to head into mediation is to know your side of the dispute well, understand the parameters of what you will settle for, and consider the different potential outcomes of this alternative to litigation. Mediations can be long and gruelling, with numbers thrown around and the settlement dropping by significant amounts of money in an instant. Do not go in blind – knowing your numbers and considerations when the pressure is on will provide the best chance of settling and settling for what you want.
1. Know your story
The mediator will want to hear each side of the dispute from the parties themselves. Feeling comfortable with your story and being able to convey the emotions you feel around your case will allow the mediator to best guide the mediation. The mediator will want to understand the merits of your case, and why you deserve to settle for a certain amount of money. Bring relevant information and facts into the negotiation process. How you present is also extremely important because both sides will be considering what would happen at a jury trial. The better you present, the more likely a jury would award a bigger number. And vice versa.
Telling your side is not necessarily trying to ‘win’ the favour of the mediator. Adding how this case has personally affected your life gives weight to your claim, shows your willingness to settle, and can bring emotion to an otherwise number-based negotiation.
2. Know your number
In the moment, and during a gruelling and long negotiation period, you may lose sight of your ultimate number. It is best to know your number, while also being open to the flexibility of the number.
Instead of playing a guessing game as to the lowest amount of money you will settle for, consider discussing with your attorney your negotiation plan
- What is your target settlement – which is the number you want to leave with
- What is your bottom-line number – the amount of money you will not accept less than
When you go in without a number, the mediation process can feel overwhelming, with numbers being thrown rapidly back and forth.
3. Know other factors that should influence your number
With the help of your attorney, other expenses and factors should be considered when you are ultimately deciding the amount of money you would settle for. Attorney fees should be considered. The amount of money you settle for will also have to pay out by your attorneys.
As well, when deciding your number, your attorney will help consider other jury awards given to cases with similar facts. These awards can help determine a number for your case – how much a jury would likely give you will determine how much the other party will settle for.
4. Other considerations
a. What if the case does not settle through mediation?
If you ask yourself this question, it may reveal that you do not wish to continue litigation. If the case does not settle through mediation, continuing the case in court may be the next option. This might influence your number – how much is it worth to end the dispute here and now?
Remember, it is up to you to decide if you settle but consider the cost of continuing litigation – whether financial, time, or even your mental well-being.
b. What could be part of your settlement agreement that is not money?
Creative solutions are a large part of settlement agreements through mediation. Mediations are outside of the court system, so your settlement is purely a contract between parties, meaning it is only constricted by what the parties want and what can be in a legal contract.
For example, some plaintiffs may want an apology. Instead of seeking a certain amount of money, maybe they would like to settle for an apology and a lesser sum. Being open to these creative solutions can help parties get what they want, while also helping them be more likely to settle.
With fewer and fewer cases going to trial, plus the backlog of cases from the Covid-19 pandemic, it is extremely important to consider mediation as a potential tool to resolve your case.