What is mediation?
Mediation is the process of attempting to settle lawsuits or other disputes by use of a third party, a mediator, who acts as a link between the parties to assist in negotiations and facilitate resolution of the lawsuit or dispute. Mediators receive special training teaching them how to be effective mediators. Prior to mediation occurring, the attorneys for the parties to the lawsuit usually prepare a position paper giving relevant information to the mediator to present the facts to him and set forth the nature of the lawsuit.
Court ordered mediation.
Court ordered mediation can be conducted by the trial judge, a magistrate judge, or hearing officer. Court ordered mediation tends to be less successful than voluntary mediation for the simple reason that it is a process which is ordered to occur as opposed to the parties voluntarily agreeing to participate. In court ordered mediation, the judge, magistrate judge, or hearing officer leading the mediation suggests possible ways that the case should resolve itself without the need for a full trial before a judge or a jury. The parties to the lawsuit have the right to accept the recommendations of the mediator, reject the recommendations of the mediator, or modify them, and to settle the case on any terms to which they agree.
Voluntary mediation is a process where the parties voluntarily employ someone to act as a mediator. There are many firms which employ mediators in southeast and south-central Louisiana. This mediator is an attorney who is paid to act as a neutral third party, hear the case from the parties to the litigation, and suggests ways that the lawsuit may be resolved. There is a mediation date scheduled and on this date, the parties and their attorney’s meet with the mediator, usually at his office. The mediator’s job is to point out the strengths and weaknesses of each party’s case and to make recommendations as to how to resolve a case based upon these observations. Once again, the parties to the lawsuit have the right to accept the recommendations of the mediator, reject the recommendations of the mediator, or modify them. In voluntary mediation, the process involves parties submitting offers and counteroffers back and forth until the parties reach have a deal in place settling their case, or reach an impasse. If the case is settled, it is confirmed in writing by the parties to the lawsuit and their attorneys at the end of the mediation session. The actual settlement of the case usually occurs within 30 days of the mediation.
When is mediation useful?
Voluntary mediation tends to be useful when the discovery phase of a lawsuit has occurred and the parties need an independent third-party to review the facts and offer suggestions as to how a case may be settled. Many courts order mediation. The author has found that court-ordered mediation is not as successful based upon the demands placed upon court personnel and further, that the parties are ordered to participate in the process, i.e., it is mandatory. Voluntary mediation tends to be more successful as the parties are participating in the process voluntarily and they have the undivided attention of the mediator whom they are paying directly to assist them to attempt to resolve the case.
Statistics show that approximately 80 to 85% of the cases in which the voluntary mediation process is employed, are resolved either at the mediation session or shortly thereafter.
Mediation is simply another tool used by trial attorneys to attempt to resolve cases for the benefit of their clients.
Greenberg & LaPeyronnie is not your lawyer, and therefore the information contained in this blog post is simply informational, not legal advice. However, if you have any questions or are seeking legal advice, please call us at 504-366-8118 to set up a consultation today.