When is a Middle-Man/Woman/Person A Good Thing?
You were in an automobile accident and you have a suit filed on your behalf by your lawyers. It has been a year or two and there is, as yet, no trial date. You have been kept informed of the “discovery’ that has been going on. Your deposition, other depositions of experts and doctors may have taken place and yet you are not sure when this will be set for trial or, better, resolved by settlement.
Up to now, your lawyer has diligently kept you apprised of the case, but your only participation has been when you were deposed by opposing counsel. You were prepared by your lawyer, answered only the questions that were asked, but were not allowed to tell your side of the story completely. “You will be able to do that at trial” your lawyer might have said.
What if there was an alternative to trial, where you could tell your story, not in a courtroom before a judge or a jury of twelve or six strangers who will be asked to decide your case, but in an “informal” setting before a neutral third party?
There is an alternative – it is mediation.
How would you feel if you knew that within thirty days after a successful mediation, under most circumstances, you would have a settlement agreement, be paid the agreed upon settlement amount and your lawsuit would be over? You would have participated in the decision-making process about whether and for how much to settle during that mediation.
Mediation is an alternative dispute resolution process that has the lawyers and the parties, i.e., the people involved in the lawsuit, meet with an independent third-party mediator who helps the parties come to their own conclusion about whether and when to settle. (There are other ADR processes, like Arbitration, Early Neutral Evaluation, etc., but mediation has become an essential consideration in connection with possible outcomes of virtually any lawsuit.)
Here’s how mediation works. A date is scheduled for all sides of a lawsuit to meet to mediate the case in an office setting. You meet with your lawyers as well as the other sides’ lawyers and possibly their clients, but the new person you will meet is the Mediator. That is when a middle-man/woman/person is a good thing. He or she will introduce themselves to you and all sides at what is called a joint session, meaning that everyone is present. The mediator will explain the process and how the day will progress. Most of the time, at that joint session, each of the sides/parties, through their attorneys will be afforded the opportunity to present a summary of what they think the case is about to the mediator and to each other. With the attorneys’ permission, the parties may also make presentations in the joint session. (There may or may not be preparation provided to the mediator prior to the mediation depending on the complexity of the case or the number of parties.)
After the joint session, the mediator then meets with the parties and their attorneys in separate rooms. During these confidential meetings, the mediator discusses the case in much greater detail, asking questions and listening and then asking tough questions about strengths and weaknesses in the case. You are in the room and can, with your attorney’s permission, say whatever you think is important to your case.
Mediation is a confidential, structured settlement process involving all the parties to the lawsuit with the mediator acting an agent of reality, a “devil’s advocate” and a person to whom things that won’t be admissible in evidence, but may be important to you, can be told. The mediator has no stake in the outcome and is a neutral third party.
Eventually you make your first demand through your lawyer and then the mediator goes to the other side or sides and meets with them like he/she just did with you. The mediator asks tough questions of them as he did with you and gets them to respond to your demand. He then comes back to your room. He or she then further discusses what the other side has presented and hopefully, some of what you and your lawyers hear may make you consider rethinking your positions and adjusting your demand.
The mediator then goes back and forth between the parties until a settlement (or an impasse) is reached. If a settlement is reached, a written Mediation Settlement Agreement is signed which memorializes the agreement and the funds are generally available in no more than thirty days.
What just happened when settlement through this process is achieved? You have had a chance to tell the mediator and your attorney what you think is important and how this litigation and accident have affected your life. You get to fully participate in the decision about whether and for how much to settle. You “get your day in court” so to speak.
If the mediator is good, you will have been provided with different ways to look at your case as well as what the settlement could mean. One of the non-monetary benefits of a settlement brought about by this process is just that the lawsuit is over. Lawsuits and courtrooms tend to make people nervous at just the thought of going to trial. Many times, I have been told “I am just so glad this is over, and I won’t have to go to trial.”
During the mediation, you may have heard things that you didn’t like and may not have wanted to hear, but were shown through the day how various things you thought were important or things you hadn’t thought of could affect your case. People are human and only see the side of an argument in ways that help them. Good mediators test all sides’ theories, evidence and ideas to provide a fresh, independent perspective which can enlighten, enrage or encourage, but which need to be considered in the context of whether, for how much and when to settle.
If an impasse is reached, the case proceeds as if the mediation hadn’t taken place, but at least there should be a new appreciation for what the case is about, both for the better and for the worse. All of the communications at the mediation are confidential and cannot later be used in the trial of the case. The parties will have signed an agreement to such effect and the Louisiana Mediation Act ensures the sanctity and confidentiality of the mediation process.
Why mediate? The satisfaction level of people who have settled their cases in mediation is generally higher than a settlement reached between the lawyers without client participation in the settlement discussions. Studies have shown that this is because the clients themselves have been involved all throughout the mediation and were decision makers in the settlement process. They, of course, take guidance from their attorneys who have the trial experience, but may feel more like partners in the process that just as clients being advised or “told” what to do.
“The mediation process is distinct from other dispute resolution processes because the mediator, in contrast to a judge or arbitrator, is not authorized to impose a decision. Rather, the mediator is only authorized to oversee a process in which the parties are responsible for developing their own agreements. Many argue that it is this unique process that is largely responsible for party satisfaction with mediation…
"the opportunity for meaningful participation in determining the outcome of the procedure (whatever it may ultimately be) and the opportunity for full self-expression." 1.
Parties who feel that mediation provides them with a voice, an opportunity to be heard, a chance to participate meaningfully and a chance to influence the process are likely to report high levels of satisfaction with mediation.
While this article is written in the context of an automobile accident lawsuit, business disputes and lawsuits as well as succession matters are often mediated. The satisfaction level among sophisticated users/participants who have been in lawsuits in corporate or other settings is still higher when settlement is reached through mediation. (Mediation is also used in divorce cases which may or may not have the parties represented by attorneys during the mediation.)
In an 2018 online outline written for the American Bar Association, Division for Public Education, How Courts Work, Mediation, the satisfaction levels of participants in mediation were tied to “making your own choices, …unique solutions to satisfy one’s interests, …the discussion of both legal AND personal issues (emphasis supplied)…the speed of the process compared to going to court,…lower costs,… privacy… and the more active level of involvement of the litigants resulting in a greater commitment to the settlement reached.” The less intimidating setting of mediation was also cited as a major reason for satisfaction.
If you are involved in your first lawsuit or have had multiple experiences with lawyers and lawsuits in your business or have a dispute with your family in a succession matter, think about suggesting to your attorney the mediation alternative. It may save you time, result in a settlement and make you more fully satisfied with the legal process and its alternatives.
- "Party Satisfaction" Perspective on a Comprehensive Mediation Statute. University of Missouri School of Law Scholarship Repository (1998) co-authored by James Levin University of Missouri School of Law, and Chris Guthrie Vanderbilt University – Law School.
J. Gregg Collins
Gregg Collins Mediation Arbitration
AV rated. Gregg Collins Mediation Arbitration opened April 2016. Twenty-seven years as full time mediator involving more than 2360 cases ranging from two-party automobile cases to those involving multi-party, multi-million-dollar settlements in medical product liability, trucking, Jones Act, complex product liability and toxic tort. Has mediated cases involving multi-party, multi-carrier coverage issues. Best Lawyers in America 2012-2019; Top Lawyers, Louisiana and America; Best New Orleans Attorneys in mediation. Umpired cases involving “Appraisal Clauses”. Arbitrator in construction and other matters.. Past Adjunct Professor at Tulane School of Continuing Studies teaching “Introduction to Franchising”. Past Adjunct Professor at Loyola Law School teaching mediation and arbitration. A former maritime and insurance defense lawyer, he is now a solo general practitioner in addition to his mediation practice. Small business owner involving historic tax credits and historic real estate development. Tulane Law School, 1979. Editorial staff, Maritime Lawyer. Former Chair, ADR Committee, New Orleans Bar Association. ADR Section of the LSBA. President (Prime Minister), The Churchill Society of New Orleans.
Publications: Law Firm Practice Management, “Chapter 6, Numbers: Scary or Storytelling? DRI Defense Library Series (2014)
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