In most civil cases, parties to the suit engage in settlement negotiations to avoid the expense and uncertainty of trial. While these negotiations are often informal — attorneys have been known to emphasize their client's strong position in even the most mundane conversations with opposing counsel — in recent years more and more cases have been settled through formal mediation. In many jurisdictions, in fact, courts require that the parties attempt mediation as an element of their pre-trial preparations.

Mediation is usually very simple: The parties to the case meet to attempt to resolve their dispute. This process is helped by the intervention of a mediator — a neutral third party hired to both referee the negotiations and argue on behalf of each side. While mediators often have undergone some training in alternative dispute resolution, no two mediators are alike. Some are heavy handed, arguing the opposing side's case forcefully to each party, in an attempt to get them to recognize the weaknesses of their respective cases. Other mediators act more as facilitators, gently moving the conversation along when negotiations appear to be breaking down.

Unlike arbitration — another form of alternative dispute resolution — mediation is usually non-binding. That is, if a settlement is reached between the parties, the mediator has no authority to enforce the resolution. Instead, the parties will usually sign a settlement statement, setting forth the elements of the agreement reached. Once all parties have signed this agreement, a motion to dismiss the underlying case will usually be filed with the court. After a judge has signed this motion, the case will be concluded.

In a typical mediation, both parties may meet together with the mediator in a conference room or office, where the attorneys for each side have a chance to make an opening statement, presenting the outlines of their case. After the opening statements, the parties and their attorneys may retire to separate rooms, with the mediator going back and forth from room to room, discussing the case with both the plaintiff and the defendant. In these informal meetings, the mediator my ask the attorney for one side to argue why they have the stronger case, then make the counter-argument on behalf of the opposing side. These discussions with the mediator are generally considered confidential: at times, your attorney may reveal a fact or point of law to the mediator to strengthen your position, but then ask that this information not be revealed to the other side.

Unlike a trial, there is no standard of proof in mediation; the parties are merely working toward a settlement of their differences. Evidence that may be inadmissible at trial may be frequently brought up in mediation. Likewise, mediation is not as concerned with legal precedent.

At some point during mediation, the mediator will ask one of the parties to make a settlement offer. The mediator will then take that offer to the opposition, who then has the option of accepting, making a counter-offer, or rejecting the offer out of hand. A typical mediation may require many, many rounds of this sort of back and forth, until eventually (hopefully) all parties agree on a settlement figure. For complex cases, this process can require many hours, and may even be spread out over multiple days.

Preparing to Meet With Your Attorney

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Preparing to Meet With Your Attorney

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