In my experience with personal injury and car accident cases in the Dallas / Fort Worth area, it is highly unlikely that any case will advance to trial without the judge ordering the parties to mediation. I would suspect this is also true for other jurisdictions throughout the country. “Mediation” is an informal settlement conference. Mediation is usually held at the office of an independent third-party called a “mediator.” Although mediators are generally attorneys, it is not required that a mediator be an attorney. Some mediators also hold certifications, but that is also not generally required. Not all cases settle at mediation, and mediation is not necessary for a case to settle. The parties may settle a case at any time, whether before mediation, after mediation, or even during trial. The advantage to mediation is that it allows the parties to attempt settlement negotiations in a dynamic setting, while the parties are physically present and concentrating solely on the case at hand. Likewise, each party is required to come to mediation with full authority to negotiate a settlement. Another advantage of mediation is that a mediation is completely priviledged. This means that no communications or statements made at a mediation can be used as evidence at any trial or hearing. This allows the parties to be completely open with each other without the threat of having to answer for their comments in court. Additionally, the mediator cannot be subpoenaed to testify.
Mediations can take anywhere from a few hours for most cases, to a few days for the more complex cases. The parties will meet at the mediator’s office. The medaitor will usually start with a joint session where he/she will introduce the parties and give some general instructions. Then the Plaintiff’s attorney will go first with a brief opening statement, followed by the Defendant’s attorney. The parties and their respective attorneys will then break off into separate rooms called “caucuses.” The mediator will visit each caucus trying to get the parties to find some middle ground. The mediator will ask the Plaintiff to make some sort of settlement demand, and will also convince the Defendant to make some sort of settlement offer. Each visit by the mediator is designed to get each side to migrate toward a settlement. If a settlement is reached, then the mediator will draft a short “Memorandum of Settlement,” and ask that each side (and their attorneys) sign it. Once signed, the settlement is binding, pending receipt of the settlement check and a more formal settlement agreement to be signed. Even though the communications at mediation are priviledged, a written and signed mediation agreement is enforceable should one of the parties refuse to abide by the settlement.