Mediation – What, Why, When, Who and How?
What: Mediation is a means to an end – resolving your case – that is quicker, cheaper and more certain than the alternative of going to trial. Mediations may be court-ordered or voluntary, but either way, the parties retain all decision-making authority and control over the case. Although a mediator may provide advice and counsel, she is without power to decide the case.
Why: There are many advantages to mediation and very few disadvantages: 1)Mediation allows the parties complete control over the outcome whereas one has no control once the case goes to trial; 2)Having all the parties together allows for quick and easy exchange of offers and demands; 3) Mediation provides a much quicker resolution to your case than going through the clogged judicial system; 4)Mediation is less costly than continuing to litigate a case through trial; 5)Good mediators offer insight into your case that can help you and your lawyers properly evaluate its merits and weaknesses.
When: Generally speaking, the best time to mediate is after discovery has been completed and both sides have had an opportunity to evaluate the case. In a case involving personal injury, it is usually more cost-efficient to mediate prior to taking medical depositions. That said, it is never “too late” to mediate, and many cases settle on the proverbial court-house steps.
Who: The best mediator is often the one your opponent chooses. Why? Because, In my experience, it is better to meditate with someone that your opponent respects than someone they do not trust. Simply put, a respected mediator has more persuasive power. It is also helpful to select a mediator who has experience in handling cases in the same field or area as yours. A list of Alabama mediators may be found at the Alabama State Court Mediation roster.
How: The process is fairly straight-forward. The parties meet at an agreed upon time and date and the selected mediator will lay out the ground rules and may ask the lawyers to give opening statements. Next the parties will go to separate rooms and the mediator will go back and forth throughout the day relaying offers and concerns. Mediations work best when the parties come with an open mind and with the intent of listening and learning. At the end of the day, the case may not resolve, but most likely, you will have gained more knowledge about your case as a result of the mediation process.