Mediation is a fast way you find out what someone neutral thinks, and gets you a fast answer to your demands.
Let’s look at what happens in a mediation.
Mediation is a negotiating session between the parties managed by a third lawyer. The third lawyer – the mediator – is agreed on by both sides or appointed by the court, and is neutral.
The mediator usually listens to both sides and then divides them, sending the insurance adjuster and his lawyer to one room and the injured person with his lawyer to another. The mediator then practices “shuttle diplomacy”, taking offers and counteroffers back and forth until, hopefully, the case settles.
How does mediation get you feedback? Because in order to settle the case, a lot of the time the mediator will tell you what he thinks about it.
Why will you listen to the mediator? Because he is usually chosen by both lawyers because he is experienced at saying what lawsuits are worth.
Jerry Lawson, who has mediated cases longer than anyone in Cincinnati, once told me that for most lawyers, mediation was their first chance to find out what another person – the mediator – thought of their case.
Lawyers usually don’t talk about their case to anyone but the judge, their clients, and the opposing counsel. The clients have their own feelings about the case. You can’t trust the other side’s lawyer, who is being paid to tell you and everyone else you are wrong. The judge can’t let anyone know what he thinks, or he will be accused of bias.
Only the mediator can tell you what he thinks. I have learned something at every mediation I have attended. Most of them have resulted in settlement.
The most appealing thing about a mediation, though, is that it offers the chance to settle the case, or at least find out how badly the other side wants to settle the case. Each side keeps making offers until it believes that the case won’t settle that day.
Mediation can happen any time, but usually it doesn’t happen until the case is relatively close to trial.
Many more lawsuits are settled through mediation than by trial. And a lot of cases that don’t settle at mediation settle afterwards, once each side has had the opportunity to grasp the other’s position.
In the old days, one lawyer would call the lawyer for the other side, and make a demand, or an offer. The second lawyer would hang up, call his client, and then get back to the first lawyer several days later.
The negotiations then were easily derailed; one side might feel “insulted” by the other’s demand, and not respond; or something would happen to distract one or both of the parties; or one might decide to delay the negotiations until more information became available. Neither side wanted to push too hard to settle the case; that would be a sign of weakness, and, in the case of the insurance lawyer, unprofitable.
Now, the parties don’t attempt to mediate until they think they know all they need to know, and they keep making offers and demands until they decide no settlement will occur.
And if one lawyer gets along with the other side’s lawyer, they can negotiate directly anyway. There are a lot of lawyers in town that I know pretty well; with a lot of lawsuits, we don’t need to wait a month for a mediation date in order to settle it.
But a lot of lawsuits won’t settle without mediation. It’s a lot better, and a lot faster, than things were before mediation came on the scene.
I have been a lawyer over 30 years. I volunteer as a mediator for the Hamilton County Common Pleas. I can resolve most of my own lawsuits without mediation, but it is very helpful. If you have questions about mediation, talk with an experienced Lawyer. Call me, William Strubbe, at 513-621-4775.
Because all situations are different, and because there may be other facts pertaining to your case that I don’t know about, you should not rely on this answer for legal advice. I am not your attorney, and no lawyer client relationship has been formed.