This series applies to California lawsuits only. For rules regarding your state’s civil litigation procedure, visit the website for your specific state’s judicial branch. This is a very broad overview. Multiple considerations must take place and detailed analysis goes into each step.
To recap, we’ve discussed some considerations before filing a lawsuit such as What is the Deadline to File a Lawsuit and Where to File a Lawsuit. We’ve also discussed How to File a Lawsuit, Responding to a Lawsuit, and Discovery.
Here’s a visual representation of what a lawsuit looks like. This article focuses on the phase within the blue circle.
Although represented in the above flowchart as happening after the discovery phase, a case may go to mediation before a lawsuit is even filed or litigated (early or pre-litigation), at any other time, or may not go to mediation at all. It is an entirely an optional process aimed at settling the dispute before the parties spend the time and money to prepare for trial. However, if the parties are serious about settling a dispute, discovery gives each side a better sense of the strengths and weaknesses of each case, which allows a more meaningful and effective mediation.
What is mediation?
Mediation is an alternative dispute resolution (ADR) process wherein the parties to a dispute jointly pick a neutral, unbiased person to facilitate the settlement of their differences outside of court. The mediator’s job is to move the parties toward a settlement despite their opposing interests while avoiding confrontation and animosity. Each side will be expected to make concessions in order to meet at that mutually agreeable settlement.
How does the process work?
Choosing a mediator
Since mediation is a voluntary process, its success will often rely on the effectiveness of the mediator. Mediators may be former federal, state, or appellate judges, lawyers, or even non-lawyers who are usually chosen because of their familiarity in the particular area of law or type of dispute at issue, their ability to command respect from the parties, and mediation style. In diverse areas like California, a mediator’s cultural awareness will also play an important factor in the success of mediating a cross-cultural dispute.
Preparing for the mediation
Unlike the judges who are assigned to a case during litigation, mediators can engage in one-on-one communications with the parties and/or their attorneys. Therefore, mediators and the parties’ counsels will often discuss the case, procedure, and any special concerns before the mediation. If the parties are represented, their attorneys will usually submit mediation brief to educate the mediator on the case, including relevant facts, evidence, the law, the amount in dispute, and the status of prior settlement discussions, if any.
Mediation generally begins with a joint session with all parties present in one room to set an agenda, define the issues, and ascertain the position and/or concerns of the parties. However, the parties may choose to skip a joint session if their relationship has deteriorated to the point where they can’t stand to be in the same room as the other person (unfortunately, this happens quite often).
A separate caucus between the mediator and each individual party and/or their counsel then follows the joint session. This is where the mediator will get to the heart of the problem, figure out what issues are in dispute and what might motivate each party to settle and helping both sides assess risk and overcome impasse with (hopefully) creative solutions. The mediator will often shuttle back and forth between conference rooms, communicating concerns, offers, and moving each party closer to settlement. The process may last a couple of hours or all day.
At the end of the session, the parties may agree to a settlement or they may not. If a settlement is reached, the mediator will record it for signature and work with the attorneys to finalize a settlement agreement. If there is no settlement, the parties will usually continue preparing for trial while continuing with settlement discussions. Sometimes it takes a couple of sessions with a mediator before the parties decide that an agreed upon settlement makes more sense than the cost and risk of taking a dispute to trial.
Please read our disclaimer.