Mediation is one of the aspects of litigation that can be confusing for parties in a lawsuit, but there are few rules to understand about the process that can make it a lot less daunting. Mediation is a non-binding meeting where the parties in a lawsuit hire an independent mediator (a retired judge or lawyer) to try to reach a settlement. Here are five issues a party should understand to be better prepared for a mediation:
1. The mediator will make you feel uncomfortable about your case.
As I wrote in a prior post, a mediator’s only role is to get the case settled. He or she is not there to be your friend, not to tell you what they feel the case is worth, or to protect your opponent’s position. Their job is to get a settlement. Put yourself in the mediator’s position: you have two adversarial parties who hate each other and believe they will win if their case goes to trial. How, as a mediator, do you get the parties to move off their respective beliefs? You must attack both sides’ theory of the case by pointing out the weaknesses of each position.
So don’t take the attacks personally, or think that the mediator is only attacking your position. If the mediator is persuasive about how weak your case is, she is equally persuasive to other side. Understand that the attacks are not personal, are not necessarily how the mediator perceives the value of your case, but are a tool to get the case resolved.
2. Before the mediation, set a bottom walk-away number, but also a number...
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