You didn’t expect to be here, but yet here you are — stuck in a lawsuit over which you seem to possess little control. Now, your lawyer says he wants to “mediate” your case and wants a response from you soon. Unfamiliar with the process, you wonder if you should say “yes.” Maybe a little history will help you to make your choice. Mediation arrived on the scene in Louisiana in the early 1990s. It offered an alternative to protracted litigation and the ordeal of trial. The theory was that mediation offered an efficient, cost-effective means of resolving a case and allowed the outcome to be determined by the litigants as opposed to the judge or jury.
In a state court trial, the outcome of your case rests in the hands of twelve unknown jurors or the judge. For all intents and purposes, once the case is submitted to the judge or jury, a litigant loses control of his or her destiny. Although judges and juries often get it “right,” sometimes they do not. All you have to do is consider how many of the convicted are subsequently exonerated through a DNA analysis; how many cases get reversed on appeal; or, for a specific example, the O. J. Simpson acquittal which is often cited as an improper verdict. Mediation can put the decision-making back in your hands.
Mediation is generally an informal proceeding. The first step is for the parties to agree to mediate. The next, and very important step, is to select the mediator. You want a mediator familiar with your type of case. Then, you pick a date. Meditations usually last between a half-day to a full day. The mediation is attended by the mediator, the litigants and their attorneys in a confidential setting. It is important to understand that the mediator is simply the facilitator who “manages” the mediation. The “shots” are called by the parties through their attorneys. The decision as to whether to settle is solely in the hands of the parties. At the end of the day, cases are often resolved, perhaps most of the time. Even if the case does not settle at mediation, follow-up by the mediator often results in a settlement in the days and weeks that follow.
The process of mediation can be extremely valuable for these reasons: it can greatly reduce costs, fees and expenses; it gives the parties greater control over the outcome; it eliminates risk; and it allows closure and ends the distraction and emotional baggage clients often experience when in litigation. So now, when you are asked to mediate, you might let history be your guide.
By: Gracella Simmons, partner with Keogh Cox. As a mediator, she has successfully resolved a wide variety of cases over the past 15 years.