Cases pending in the Dallas / Fort Worth area courts are almost always ordered to mediation before going to trial. That is because judges know that mediation presents the best chance for the parties to resolve their dispute and move the case off their already crowded dockets. Statistically speaking, legal disputes settle without ever going to trial. And mediation is the most common way lawsuits get settled. So what is mediation and how does it work?
What is Mediation?
Mediation is a voluntary process in which the parties to a dispute gather at a neutral location and attempt to settle their dispute with the help of a professional mediator. But just because the court orders the parties to mediation does not mean the parties have to settle. A settlement is made if, and only if, all the parties can agree. That is what is meant by a mediation being a voluntary process.
The dispute can arise from a personal injury case, to a vast array of civil matters. Although the disputes are usually pending in civil courts at the time of a mediation, the parties may attempt mediation before any lawsuit is filed.
The mediator is usually a lawyer but doesn’t have to be a lawyer. In fact, many successful mediators in the D/FW area are not lawyers. What makes a mediator effective is the ability to authoritatively communicate with each party about the risks of their case without coming across as offensive. Creating a level of trust, while also demonstrating knowledge and experience about the legal matters, is the pinnacle characteristic of a successful mediator.
How Does Mediation Work?
As stated earlier, usually the judge orders a case to mediation. But the parties can agree to go to mediation at anytime, whether a suit is filed or not. Either way, a mediation is scheduled a time that is convenient for all the parties and is usually conducted at the mediator’s office. Normally, a mediation lasts for a half-day, but can be scheduled for a full day or even longer depending on the complexity of the case. The parties will attend with their attorneys. The process normally begins with a brief “join session.” This is an opportunity for the parties and attorneys to meet and give some opening remarks about their case. The mediator will then divide the parties into different rooms which are called “caucuses.”
The mediator will shuttle between each caucus to privately discuss the case with each of the parties and their attorneys. It is during this period that the mediator attempts to move the parties closer to resolving their case. In the caucus meetings, the mediator, attorney and party will talk frankly about the risks of going to trial. The goal here is to have to parties view their case in such a way that settlement will most likely produce the best result for resolving the case rather than taking your chances at trial. All discussions between the parties, attorneys and the mediator are completely confidential and will not be disclosed to the other side unless the parties agree to such disclosure.
The mediator will then ask, and even suggest, that each party offer some terms of settlement. This is where the talent and skill of the mediator are most influential in reaching a settlement. The parties must know that, in order to settle, each side will have to give up more than they want in order to avoid the risks of a trial.
The Mediation Settlement.
If the parties come to an agreement, then a brief written settlement memorandum is signed and the mediation process is concluded. There is an old saying in mediation: “If all the parties are unhappy, then the mediation was a success.” That is because each party has probably conceded more than they wanted, whether it be money or some other terms and conditions. The point here is that a successful mediation requires a “give and take” from both sides. But in my experience as an Dallas area attorney, I can personally say that mediation poses the best opportunity for the parties to bring closure to their case while also maintaining complete control over the outcome.