Mediation is an informal, voluntary process where the Plaintiff and Defendant work with a mediator to try and reach a settlement in a case. Mediation can occur either before or after a lawsuit is filed. Usually, the mediator is a retired attorney or judge who has experience in subject matter of the kind of case that needs to be resolved. Mediations can last a full-day or half-day. The cost for a full-day mediation ranges widely depending on the mediator and the level of demand that person has. Typically, for a single-plaintiff case, the fees range anywhere from $6,000 to $15,000 for a full-day. The fees tend to be higher for a class action mediation. The fees are usually split evenly between the Plaintiff and Defendant.
The purpose of mediation is to try and reach a settlement. If the parties are not making meaningful progress, either side is free to end the mediation process at any time.
There are benefits to mediation that a jury trial cannot provide. If the parties reach a resolution outside of court, it takes the uncertainty out of the litigation process. Juries can be unpredictable. When a claim is resolved in mediation it provides finality to a stressful litigation process.
Once both sides agree on a mediator, the next step is to confirm a date for the mediation to take place. After a date is agreed upon, the parties send in their share of the mediation fee to secure the date.
Both sides prepare a mediation brief. This is a document that outlines the issues in the case and the damages that are claimed. It provides a basic roadmap for the mediator to better understand the issues. These briefs can be exchanged with the other side or kept confidential with the mediator. There are strategies to both options.
Mediations can take place in-person or remotely, using a platform like Zoom or Microsoft Teams. Regardless of the format, you and your attorney will be in one room (either in-person or virtual) and the other party will be in a different room. The mediator goes back and forth between the rooms to discuss the issues. For full-day, in-person mediations, lunch is provided.
In limited circumstances, the parties may have a joint session together. However, this is a rare occurrence. If you are uncomfortable with the idea of a joint session, you should let your attorney know. This is your settlement process and you should feel as comfortable as possible. Sometimes attorneys are briefly put in a room together to discuss particular issues that are important to the case.
The ultimate goal is to settle your case under terms that you can live with. If a settlement is reached, the parties will sign a written agreement that outlines the terms and conditions. Under most circumstances, this happens on the day of mediation. Sometimes a case is not settled the same day that the mediation takes place but the mediator will continue to work with the attorneys by phone and email to get the matter resolved. This sometimes takes days to weeks. Usually this happens when additional information is needed in order to make an informed decision or the parties think about it further and decide that a settlement is in everyone’s best interest.
When both parties are willing to come to the table, the mediation process is a powerful tool that can be used to settle a case.