Alternative Dispute Resolution – Mediation

A very noticeable change in the handling of personal injury cases over the last three decades has been the willingness of both sides to engage in alternative dispute resolution. Even the Pre-Trial Order of the Massachusetts Superior Court asks about the parties’ willingness or amenability to alternative forms of dispute resolution. Generally that means mediation or arbitration. I have blogged primarily about mediations and I will blog a little about arbitrations over the course of the next few weeks. But let’s turn our attention once again to mediation. In this blog, I will focus on what you will hear from the mediator at the outset.

What is the introduction that the mediator gives? What does his or her overview of the process look like? Whether it is a retired judge or an experienced lawyer, they describe the things that will occur at the outset. In trying to make you comfortable, you will hear the mediator praise your willingness to come to the mediation table. You will also hear the mediator proudly relate his/her success rate at resolving cases.

The introductory remarks include the fact that mediation is a voluntary process. No side is compelled to be there by the courts. As you can gather by what I mentioned is in the Pre-Trial Order, the courts encourage your participation, but no side has ever been forced to go to a mediation, at least to my knowledge. Secondly, the mediator has no authority meaning that the mediator has no ability to force a resolution on either party. Thus, it is not only voluntary in terms of going to the process, but the resolution is likewise voluntary. You will hear a mediator say that it is usually better when the parties make the decisions themselves rather than turning it over to a jury. Both parties are asked to go into the negotiating process with an open mind. The negotiation process of the mediation is essentially done in separate rooms with the plaintiff, the person suing, and his/her people in one room and the defendant personnel, perhaps an insurance representative as well, including their attorney in the other room.

The mediator will then conclude their introductory remarks by telling you that if you cannot resolve the case at mediation, the system will cause 12 people to decide it for you. I want to add however that it does not exactly happen as immediately as you may think. If you have a case that does not resolve in mediation, it does not automatically mean that you will have a jury trial with 12 people deciding. Instead, it can simply mean that negotiations may continue. Sure there is a chance of a jury trial, but not necessarily as high as likelihood as you are led to believe after an unsuccessful mediation.

All in all, I think mediation is often a sensible course of action. You can impress the other side with the strength of your case. Your well-prepared lawyer should do that. Also, you will get to hear what the other side has in mind in terms of its arguments and defenses. Clients also enjoy the fact that in a mediation they usually have no speaking role. (To be sure, there are times that I have called upon my clients to address the mediator and the defendants. Such times occur only when I feel it is a help to the case, of course.) This is most assuredly very different from a trial or even an arbitration where the client will almost always testify and in so doing will be subject to cross-examination. There is no requirement that the client say anything and certainly there is no cross-examination under any circumstance in a mediation. Family members can attend. Finally, the track record of mediations has been estimated in the 80-90% success rate. As the old saying goes, nothing ventured, nothing gained. I will come down on the side of the 80-90% and say there may well be a lot to gain.