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Understanding the Mediation Process

by | Oct 24, 2022 | Business Law |

There will come a point in your case when your attorney will discuss the possibility of mediation in your case.  This point typically comes following the notice of court ordered mediation received early in the case before much discovery has been completed.  

The court ordered mediation notice is an automated system generated mailing that will inform you that your case (all civil cases) has been assigned to mediation and that a randomly selected mediator has been appointed.  In employment cases and other complex litigation cases, your attorney is likely to tell you that it is beneficial to go through the mediation process but that the mediator should be a retired judge. 

As you think about mediation, know that the benefits of going through this alternative dispute resolution process are significant.  The mediator’s job is to bring both parties to a settlement of all claims in the mediation.  Through a settlement agreement, you will agree to accept a certain amount of money from the other side in exchange for releasing and waiving all of your claims against them.  By settling for a concrete number, to be paid within a short period of time, usually 30 days from your signature on the settlement agreement, you are eliminating the risk and ongoing expenses involved with taking your case to trial.  Your attorney will tell you that you cannot predict how juries will act or how they will perceive the credibility of your testimony or that of the opposing witnesses.  You don’t know if they will believe that you have suffered damages, particularly where your case hinges on emotional distress damages.  And you cannot rely on the ability to obtain an award of punitive damages as the jury may not think that the company’s actions were as egregious as you do.    

As you think about the mediation process, you should know the following things:

  1.  Mediator selection is important:  you want to make sure that you select a truly neutral mediator.  Often, mediators have a reputation for being defense (company) or plaintiff (employee) oriented and your attorney will do the due diligence necessary to the extent possible to determine whether the mediators proposed by opposing counsel are neutral enough.
  2. Mediators cost money:  Retired Judges are expensive, some charging $500 per hour or more.  A mediation is likely to last a full 8-10 day and you, as the plaintiff, are responsible for half of that cost as an expense of the case.  However, while this seems like a big number, as discussed above, the benefits of mediation are significant.  
  3. Settlement brings closure of all issues:  If you are able to settle the case during mediation, then you are giving up your claims against the other side, and that you are most likely also going to sign confidentiality and non-disparagement clauses in the settlement agreement.  This means that you are going to give up all of your claims against the company, agree not to tell anyone about the case or the settlement, and promise not to say anything bad about the company, your supervisor, or anyone else involved in the case.  

The Bottomline:  As you talk to your attorney about the possibility of mediation, ask the following questions:

  • Who will be the mediator?
  • How much will this cost?
  • What is our demand going to be?
  • What is the least amount of money we can resolve this for?
  • What kinds of deductions will be made from the settlement funds?
  • What happens after mediation?

Reach out to learn more about mediation and how we can help.