Published Articles

A Mediation Play-by-Play

Adapted from an article by Jeffrey P. Palmer, printed in the Orange County Lawyer Magazine April, 1994

Lawyers in all types of disputes find themselves increasingly involved with mediation proceedings. Most litigators have experience with settlement conferences and the various forms of arbitration, but few lawyers and even fewer of their clients are familiar with mediation.

Mediation, unlike arbitration, is not a substitute for the judicial process. It is the extension of settlement discussions to include an impartial and neutral third party – the mediator – who facilitates negotiation by the litigants through confidential conferences. As a facilitator, the mediator does not make an award, a judgment or a case evaluation. In mediation, the parties and their attorneys retain control over the resolution of the dispute. They themselves determine, through managed negotiations, the agreements that are reached.

By contrast, arbitrations are quasi-judicial. The parties and their attorneys submit their case to the neutral third party for evaluation of the evidence and a ruling on the amount of damages. The responsibility for the resolution of the lawsuit is, thus, transferred from the interested parties to the arbitrator.

The following is the usual procedure for civil case mediation.

Mediation Site

Mediation conferences can be held at the offices of the mediator, plaintiff or defendant’s attorney or in empty jury rooms, or courtrooms.

Mediator’s Prologue

The mediator opens the conference by providing clear and complete introductions of all persons present. He/she sits at the head of the table and directs the parties to sit on opposite sides of the table with the attorneys beside their clients. This seating arrangement insures that the parties directly participate in the dialogue necessary to the mediation process.

The mediator begins with a prologue which introduces the mediation process, establishes working rules and sets the tone of the proceedings. He/she also describes the high settlement rate and cost-effectiveness of the mediation process. The most significant factors in the mediation process are:

  1. neutrality of the mediator;
  2. confidentiality of all discussions and documents;
  3. the parties’ control over any agreements reached in the case;
  4. the need for good faith negotiations;
  5. presence of negotiators with full settlement authority, and;
  6. scheduling adequate time for the process (3+ hours).

Although the attendance of all interested parties at the hearing is required, there is no obligation to resolve the case or any issues. The mediator cannot force or coerce the parties into an agreement and the negotiation process is entirely voluntary.

Lastly, everyone executes a prepared Agreement to Mediate that contains an acknowledgment of the confidential nature of the proceedings and the applicability of California Evidence Code Section 1152.5.

Parties Opening Statements

Next, each party describes the dispute in narrative form. The mediator usually asks questions to elicit information, situational details and personal reactions. These clarify issues and provide a context for further discussion and/or decisions by the parties involved. The attorney for each party may then supplement his/her client’s statements or may ask questions to develop pertinent details.

Summary by Mediator

The mediator usually rephrases each party’s statement in non-judgmental language to help both contestants recognize the position of the opposing side. The mediator’s restatement helps to establish a new understanding of the case by each party. Time is also spent discussing legal positions and reviewing past efforts and offers for settlement.

The negotiations then proceed in two different formats: 1) joint meetings with all disputants and the mediator present; 2) or private caucuses of the mediator and each side separately.

Joint Negotiations

Joint, face-to-face, negotiations continue as long as progress continues toward a resolution. If no agreement is imminent or if the mediator senses that the parties have solidified their positions, he/she will request private caucuses to keep the discussions moving.

Caucuses

During a caucus, an additional level of confidentiality is imposed because the mediator works with only one side of the dispute at a time. This more confidential setting promotes frank discussion about case strength and weakness and gives each party the opportunity to reevaluate its position. Conversations also focus on the potential risks of proceeding to a full hearing or trial. The perceived risks of not settling the case at the mediation conference are also discussed.

The mediator meets with each side in private caucuses as long as there is progress toward agreement and new facts, positions, arguments or offers are being exchanged. Before ending each caucus, the mediator always verifies which points, if any, are confidential and must not be revealed to the opposing side.

Joint final meeting

A joint final meeting is conducted after the last round of caucuses to clarify the terms of any settlement, or to continue the case to the trial calendar. When a full accord is reached, it is drafted for entry in the court file as a stipulation, judgement or dismissal. Even if the case cannot be completely resolved, there may be stipulations on issues that can simplify the litigation and reduce the expenses of trial.

Summary

The Commission on the Future of the California Courts in its report “Justice in the Balance – 2020” predicts that the great majority of cases entering the justice system in the year 2020, will be resolved through mediation and other “appropriate” dispute resolution techniques rather than through litigation. Variations of the mediation format described here are used today in southern California jurisdictions and will be the basis for future programs.