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Many times the Courts are not set up to help parties quickly resolve their legal disputes. However, mediation or arbitration on the other hand are often ways to try to get your case settled and are trained to help the parties find a common ground where the dispute can be settled. The litigation blog discusses some tips to help you get your case settled in a mediation, whether the Court has ordered the mediation (“Court ordered mediation”) in your state or federal or litigation, or whether the parties have voluntarily agreed to mediation to try to resolve their case without further state or federal court litigation.
What are the potential benefits of mediation?
Here are some of the well-known and recognized benefits of mediating your lawsuit:
1. Avoid costs of extended litigation
2. Avoid unpredictability of jurors
3. To end all of the drama and emotional distress you have been suffering (for some this can create hi blood pressure, stress disorders or other serious health manifestations).
4. You get to see what the other side is thinking and what their legal arguments will look like and how effective their trial attorney appears to be (how invested is the opposing counsel in the case? Is he or she passionate about the case, prepared, etc.)
There are other benefits, but these are some of the main reasons that parties mediate their dispute or submit to binding arbitration.
Overview of the general steps in mediation
Here are the general steps in the mediation process. This can differ depending on the rules of your mediator.
1. Agreement to mediate is executed
2. Mediator is chosen and agreed to by the parties
3. A location is chosen agreeable to both parties
4. Mediation briefs are filed by Plaintiff and Defendant (see below)
5. Mediation sessions are held (you will usually start out with a joint session with both parties present, then move to “break-out” sessions where the mediator meets individually with parties to ferret out their position and to discuss case strengths and weaknesses).
6. Settlement is reached (and a settlement agreement is reduced to writing). This can be done at the mediation in the presence of the mediator, or by signing a post-mediation agreement.
7. No settlement can be reached, parties continue with litigation
8. Post-mediation settlement procedures are conducted (i.e. make further attempts to try to settle with the mediator, finalize any written releases, etc.)
9. Agreement is put on record with the Court (notice of settlement filed, etc.).
10. Case gets dismissed with prejudice with the state or federal court.
Attorney Steve Tip: For some cases, you might want to have a PowerPoint or Accident reconstruction videos ready to show. Or exhibits blown up. This can show the other side that you are not fooling around and are ready to take your case to trial. This can show how all the facts fit together, and give the other party a glimpse into how the case might play out in real life. This might be the first time they have heard this argument as their counsel may have been presenting a “ROSY” picture through the first several months of the litigation.
Bonus materials: Click on the picture to watch our Mediation Victory Video. Make sure to Click on the RED “V” to subscribe to our YoutubeChannel for free law & litigation video updates.
Does filing a mediation brief help accomplish a settlement?
Yes. This can be a very helpful tool to prepare a detailed outline of your case, with citation to case law that you believe is controlling. Your settlement demands can also be set forward in confidence (meaning the mediator is bound to keep your lowest amount you are willing to settle for completely confidential). Example of things that can be put into a mediation brief are as follows:
1. Outline of the legal issues in the case
2. Facts that are not contested
3. Facts in dispute
4. The legal arguments of the parties
5. The controlling case law that parties agree pertain to the legal issues
6. What prior offers to settle might have been
7. Key exhibits that impact the case (you don't need to include all pleadings, motions, rulings, orders, declarations, etc.)
Make sure your briefs are clear, concise and gives a fair analysis of the case. This is a chance to earn credibility with the mediator. Sometimes less is more.
This is your chance to educate the judge by putting your legal arguments in writing. Take advantage of this, as this will help save time when you show up at mediation. If everyone knows the facts and issues of the case in advance, you can dig right in at mediation. Therefore it can be a good idea to exchange your mediation briefs with your adversary in the litigation well in advance of the mediation (for example, give your opponent at least five days advance notice so they have time to review it have the opportunity to review it.
Attorney Steve Tip: The judge or mediator may also ask for confidential settlement figures. This is something you can consider, and this should be discussed with your Clients in advance. In my opinion, you still want to keep a “cushion” in your settlement figures, but not an outrageous or unrealistic figure.
PODCAST – Attorney Steve ® discusses arbitration versus mediation in this podcast.
General tips to help win your case at mediation
1. Prepare your case in advance. Know your case cold. The dates, the facts, the timeline of events, the witnesses, and what they will say. Who are the experts? What will their testimony be? What are the strengths and weaknesses of your case? The parties should prepare for the case as if they are going into trial. This is not the time to be lazy and cut corners. Do your homework and be ready to present your case.
2. Read the mediators ground rules and any mediation agreements that have been signed. How do they handle their cases? Usually they will send you a list before the mediation explaining how the mediator that operates and what you can expect. Read this form, attorneys and their clients should discuss these ground rules in advance so everyone knows what to expect.
3. You may want to agree with the opposing parties or counsel that the mediation is “BINDING” (meaning whatever happens and whatever decision the mediator reaches is FINAL and cannot be appealed). The Parties can also agree that if they cannot settle the case at mediation, then they will agree to submit to a binding ARBITRATION. These are things that can be explored in advance and discussed with all parties and opposing counsel. This is a good route to explore especially where the parties want to be DONE with state or federal court mediation which likely has been dragging on for some time.
4. Think about what a reasonable settlement is and what you are willing to settle for (have a list of alternative solutions that can lead to a fair compromise). You can never assume that your case is going to settle, so you should explore dollar figure amounts that will meet your “best case” versus “worse case” analysis. You have to consider be flexible and willing to compromise. Every case has strengths and weaknesses and being honest about this is very important. No one ever knows what a jury is going to do in federal or state court.
5. Do not mediate unless you have a firm belief that you have a good faith chance to settle the case (mediations are not “fishing expeditions”) you should already have your evidence and you should be far enough along in the case that you feel ready to settle it, not trying to engage in discovery.
6. The person or persons with actual authority to settle should be present at the mediation. For example, if it is a corporation the CEO, CFO, or other person with legal authority to bind the company should be present. This should be part of the mediation agreement so both parties understand this in advance. When the key figures have to show up, this increases the chance to say “let's get this done and be over this so we can move on with our lives.”
7. Pick a mediator with a track record of getting cases resolved and someone who is really committed and passionate about getting cases resolved. Wasting time and money on a lackluster ADR judge or attorney serves
8. Listen twice as much as you speak. You want to know what the other side is saying. You already know what your points are, so listen up and take copious notes. Don't let your ego get in the way of settlement. Don't say “I can't lose face on this.” It's okay to be willing to allow the other side to get something out of you, this will help avoid an impasse that terminates the mediation. When you are tired, take a break to avoid getting short tempered.
9. Be reluctant to be the first party to offer up a settlement amount. You have to reveal your hand as slow as possible. Find out where the other party is coming from. What are they willing to offer?
10. Don't rush the mediation. Slow the process down and make sure the issues and settlement solutions are adequately explored. If you reach a settlement too soon, the parties may wake up the next morning with “buyer's remorse” (i.e. “I think I left money on the table, let's not go through with settlement”).
How to use the mediator successfully?
To increase your chances of success at mediation, work in good faith with the mediator. Answer their questions. Look them in the eye and tell them your story. Show him or her you are willing to be reasonable and that you understand your risks and down-sides of not settling. You need to be open minded, trust the mediator, and come in with the spirit of settlement. As the old song says “you can't always get what you want, but if you try sometimes you just might find, you get what you need.” Your goal is to avoid the anger, and communicate your position to the other side without acting in a hostile manner that will lead to a breakdown in the process.
What if you meet an impasse?
The parties should settle down, take a deep breath and reconsider where they stand. Come back in with something new. Put something new on the table and see if you can give it one more time before calling of the mediation. Try to let cooler heads prevail.
What terms should be included in the settlement agreement?
Keep in mind if the case does not settle, these settlement agreements will normally be treated as TOTALLY CONFIDENTIAL, meaning that the parties and their attorneys cannot reveal the nature, or content of the settlement communications that occurred at the mediation unless all parties consent.
Can you still settle your case after the mediation even if you didn't reach an agreement during the mediation?
Yes. The Parties can continue to work on settlement even post-mediation.
Contact a Mediation Law Firm
We can help business and individual clients in business, real estate, insurance, internet, and intellectual property disputes. We handles cases in San Francisco (Silicon Valley area), Los Angeles, Orange County, San Diego and Phoenix, Arizona. We offer flexible legal fees, and tenacious legal representation. Call us at (877) 276-5084 or fill out the contact form below to have one of our mediation lawyers contact us.