Mediation is a settlement conference and a very important step in the process leading up to trial once a lawsuit has been filed. In cases in United States District Courts, it is mandatory unless the court approves some other process for dispute resolution.
I make it a habit to meet with my clients well in advance of any mediation in order to ensure my client understands two (2) things: 1) how the process works; and 2) settlement analysis of the case. The purpose of this writing is to help a client understand the mediation process. The settlement analysis varies, of course, from the case.
The attorneys for the parties pick a mediator mutually agreeable to them, generally one with whom they are familiar although, from time to time, it might be necessary to try out a new mediator who might provide a fresh perspective. The mediator has no real authority except to decide when the mediation is over. It is over when the parties reach a settlement agreement or when the mediator decides further negotiations will not likely prove of any value, i.e., the parties are at an “impasse.” If an impasse is reached, then the case proceeds to trial. An impasse is actually a fairly rare occurrence as approximately six (6) out of seven (7) cases settle during or soon after the mediation process. Mediation is a very important “decision day” and must be treated as such.
At the outset, everyone is in the same room. The mediator sits at the head of the table and the parties are on either side of the table. The mediator will start out by introducing himself and explaining his role in the process which is basically to facilitate conversations between the parties to see if an agreement can be reached. Then, both sides will have an opportunity to make opening remarks about how they view the case and what they want to be accomplished that day, if possible. The attorneys usually make these statements but the parties themselves can add something if they feel the need. Of course, I hope my clients will wait until the private sessions before anything further is said.
The “private sessions” are what occurs next. The parties are now in separate rooms and the mediator goes back and forth between them. There is plenty of time during these private sessions to discuss what further messages we want to send to the other side in order to get them to increase their settlement offer as they, of course, send messages back seeking to get us to reduce our settlement demands.
The whole process is confidential. Except in most unusual circumstances, nothing said during the course of the mediation can be repeated to the Judge; it is not considered evidence. In fact, there will be times when the mediator is alone in the room with us and nothing said at that time can be repeated to the other side when he is with them unless we allow it and, of course, vice-versa. These rules are designed to get everyone to be as candid as possible about the relative strengths and weaknesses of their cases and, as mentioned above, the process has proved a successful one, generally.
The foregoing is just a primer on the subject of mediation. There is more to say and you may have more questions on the subject. Please keep in mind that the foregoing is not intended as legal advice applicable to any individual person’s unique legal situation. Anyone not a client of Herbert M. Hill, P.A. cannot rely on the foregoing as legal advice and cannot make legal decisions based on its contents. If you have questions, you should contact an attorney who routinely handles claims involving lawsuits and mediation of claim arising out of disability insurance policies. The law offices of Herbert M. Hill, P.A. handle such cases and would welcome the opportunity to discuss your case with you, at no charge. You can contact me at 407-839-0005 or firstname.lastname@example.org.
If you would like, after discussing your case, we can set a conference. In most circumstances, that conference would be free of charge but in no circumstance would you be under any obligation to hire me nor would you feel any pressure from me to do so
Herbert M. Hill, P.A. is a law firm located in Orlando, Florida with a practice extending throughout the state of Florida. While the vast majority of cases handled are for disability insurance benefits, areas of practice include employee benefit claims of all sorts. The firm handles any claims arising under the Employee Retirement Income Security Act (known and referred to as “ERISA”) for disability benefits, medical benefits, retirement benefits of any sort, including pension, 401k, termination agreements or the like as well as claims arising under private disability policies.