Vail Law: Here’s a look at legal mediation
Vail, CO Colorado
VAIL, Colorado –Mediators are as different as snowflakes. Maybe that’s a stretch, but each brings into mediation his or her own personal and professional biases and experiences and has learned what, over time, is effective in settling a case.
Some mediators are stuffier and more formal than others. Others are more avant garde. I have had a session or two where the parties and counsel, led by the mediator, have all but held hands around the conference table and sung “Kumbaya.”
While there are no hard, fast rules as to how a mediation session will progress, there is generally a certain predictable flow. First, though, what precisely do we mean by mediation?
In mediation, a neutral third party – often a retired judge – helps parties resolve their disputes. The mediator does not make a decision as to who is right or wrong or what dollar amount is appropriate in a given circumstance but guides the parties to their own, acceptable resolution. In so doing, not only does the mediator apply pressure to both sides to come to an agreement but employs his own experience to give the parties his view as to the merits and demerits of the dispute.
A hallmark of mediation is its confidentiality. Not only may the mediator not be called as a witness at a later trial should the mediation fail, but the negotiations themselves cannot not be used for most evidentiary purposes. For example, if one party makes an offer to settle and the offer is rejected, the party who rejected the offer cannot make use of the offer in court. The purpose of confidentially is to encourage settlement.
Presuming a full-day mediation, the process generally goes something like this:
A week or so before the session, each side, through counsel, will submit a “confidential settlement brief” to the mediator. These are intended to provide him with the factual background of the dispute and its current status. Generally, counsel will also lay out the legal arguments supporting their respective positions and will provide the mediator with copies of documents which each considers key to the dispute. Usually, each side will also lay out what it hopes to achieve through the mediation and what terms it shall require to settle the dispute.
The parties, with counsel, typically show up at the mediator’s offices at about 9 a.m. Unless there is high conflict, the mediator will usually initially meet with the parties and their attorneys together in a conference room. The mediator will introduce himself and spend a few minutes explaining the process of mediation and how he, specifically, likes to conduct his sessions. He may also spend a few minutes broadly laying out his understanding of the case.
After the initial pleasantries, the parties are most often separated into different rooms, where they will be sequestered for the remainder of the day.
Back and forth
Most commonly, the mediator will meet first with the plaintiff and his counsel. This first session generally involves discussing the case. Next, the mediator will do the same with the defendant and his counsel.
When the mediator returns to speak with the plaintiff, he will often share his thoughts about the strengths and weaknesses of both positions and will solicit an initial offer of settlement from the plaintiff. Generally, the mediator will work with the plaintiff and counsel to shape a reasonable offer. Once the offer is made, the mediator takes it to the defendant. Most commonly, the initial offer results in a counter offer, which the mediator then presents to the plaintiff. This continues through the day until, ultimately, the parties have, ideally, resolved their dispute.
Once terms are agreed to, the mediator meets with both attorneys to work out the language of the settlement agreement. When the document is ready, the parties most commonly reconvene with the mediator and the parties and counsel sign off on the agreement.
It should be noted that the essence of mediation is good faith. If one or both parties are simply going through the motions with no intent to come to a resolution, it is time and money wasted. Only if both sides enter into mediation with the understanding that compromise is likely to mutual advantage will mediation be successful.
The greatest virtue of mediation is that the parties themselves fashion their relief and strike a bargain with which each can live. Often, this is far superior to having the court impose an outcome.
Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley. He is a former adjunct professor of law and may be heard on Wednesday nights at 7 on KZYR radio (97.7 FM) as host of “Community Focus.” Robbins may be reached at 970-926-4461 or at email@example.com.