We see and hear lawyers advertising their trial successes on billboards, benches, buses, television, the radio and online. It is, therefore, only natural for a person who has been wronged to believe that the only and best course of action is to pursue a lawsuit to and through trial.
Before accepting such a view, it is worth gaining a better understanding of mediation and considering the advantages presented by mediation, as a process through which claim resolution may be achieved.
While the average person has a media-driven understanding of what a trial looks like, far less is known to the general public of the manner in which mediation is chosen, scheduled and conducted.
How Mediation Works:
Mediation is a voluntary process in which parties to a dispute work toward a mutually acceptable resolution of the dispute with the assistance of a third party, called a mediator. The most common methods for selection of a mediator are: (a) an exchange of names of proposed mediators by each party to a dispute, leading to the selection of a mediator to which each party agrees; or (b) appointment of a mediator by the Court (in the case of a dispute already in suit.)
Though far more common in Florida in the context of a lawsuit, mediation does not require the existence of a lawsuit to take place. Parties to a dispute can choose to voluntarily mediate at any time. Nevertheless, Florida civil lawsuits are generally required to be mediated before trial.
Typically, mediation is scheduled through selection of available dates that a selected mediator has in common with all persons intending to attend the mediation. However, if a case is in suit, the Court may order mediation to take place on a date certain for or before a deadline date.
The mediation process itself differs greatly with the trial of a dispute.
A lawsuit can take from months to years to go to trial, depending upon the complexity of the case, the number of parties, and the particular judge to whom a case is assigned. A trial is a public proceeding, formal in nature, sometimes before a jury, recorded by a court reporter, lasting anywhere from a day to weeks or more.
In contrast, mediation can be scheduled by the parties to take place well before any scheduled trial date. Mediation is a private and confidential process, informal in nature, the duration of which, if the parties so choose, can last less than one half day or as long as multiple days.
At trial, a judge issues rulings, and the outcome at trial is determined by a verdict issued by the judge or a jury. At trial, the outcome is thus decided by “strangers” to the parties to the dispute.
At mediation, the mediator does not decide any issue or impose any obligation or outcome on any party. At mediation, it is the parties to the dispute, not unknown third parties, who decide the outcome of the dispute and who may prepare and execute a written agreement resolving the dispute.
In Florida, if all claims in a lawsuit are fully resolved at mediation, the mediator files a report with the Court, informing it of the mediated resolution of the claim. At that point, the parties to the lawsuit comply with the terms of the mediated settlement, leading to the dismissal of the lawsuit prior to trial.
Advantages of Mediation:
1. Control and Predictability.
The process experienced prior to and at trial can be replete with circumstances about which a litigant has no control. For example, in the context of a bodily injury lawsuit, a Plaintiff may be subjected to questioning by adverse counsel at deposition and may be compelled to attend and to undergo a physical examination by medical expert unknown to that litigant. Similarly, a Defendant in a bodily injury lawsuit may be subjected to questioning by adverse counsel at deposition and may be compelled (in the context of premises liability claims) to open up his home/place of business for inspection by persons unknown to that litigant.
Thereafter, at trial, the litigants are subjected to the rulings of a judge with whom they are likely unfamiliar and are ultimately faced with a verdict by a jury comprised of persons who are, necessarily, strangers to the litigants. It is perhaps in light of such circumstances that some parties to a lawsuit may be concerned about the prospect of not only what a jury at trial may do for them, but of what a jury at trial may do to them.
A major advantage of mediation is that it vests in the parties control of the outcome of their dispute. This does not necessarily mean that each party will secure everything sought prior to and at the outset of the mediation, but it enables each party to craft a resolution to the dispute that each party considers preferable to the risk presented by the unpredictability of a judge and/or jury at trial. With the assistance of the third-party neutral, the mediator, mediation has the advantage of empowering the participants, who may “take ownership” of the outcome of their negotiated resolution.
Each party to litigation may be impacted differently by the process. Some people are not, or are less, affected by litigation, for reasons that may include prior experience and/or effective coping mechanisms. Some people, however, may feel emotional, physical, financial and/or other stress associated with being a part of a pending and continuing lawsuit.
Such effects are compounded by the fact that the duration of a lawsuit is far from certain, and may depend upon such factors as the particular Court in which a case is venued, the complexity of the dispute, the number of parties, the outcome at trial, and whether or not an unsuccessful party may pursue an appeal that further extends the litigation.
Mediation has the advantage of offering each party the opportunity to resolve the dispute at an earlier stage, thus reducing potential and actual negative effects that a participant may relate to being a party in a lawsuit.
There are costs associated with preparing a case for trial and with trying a case. These costs can be substantial. Costs associated with preparing a case for trial could include, but not be limited to, fees charged by consulting experts, by trial experts, fees associated with physical and other examinations and inspections, costs associated with the conduct of depositions, travel costs, and costs associated with preparation and service subpoena and acquisition of records. Costs associated with trying a case may include but not be limited to additional fees charged by experts, charges associated with the creation of demonstrative exhibits, court reporter charges and other trial-related expenses.
In stark contrast, the most common cost associated with mediation is the fee charged by the mediator. To the extent that mediation often takes place well before the date set for trial, mediation has the added advantage, under appropriate circumstances, of enabling the parties to minimize pre-trial and trial related expenses.
The confidentiality afforded by mediation provides a safe environment for each participant to explore options, to modify positions, and even to apologize were appropriate, with no fear of public embarrassment. Participants are afforded what may be the only opportunity they have to speak face-to-face, to brainstorm, and to negotiate a resolution that may meet the interests and needs of the parties.
5. Assistance of a neutral third-party
Some clients have absolute faith and trust in their attorneys. Some clients are unsure as to whether or not their attorneys are seeking what is best for them. Some clients view their attorneys as seeking to obtain a “quick,” but not necessarily the best, recovery. Some clients view their attorneys as seeking to offer whatever it takes, regardless of merit, to make a case go away.
It is thus fair to say that there are differing levels of trust between clients and their attorneys.
As a neutral third party, i.e. with no financial relationship to any party or attorney involved in the dispute, a mediator works as a facilitator to provide structure and to assist the parties to effectively communicate about and work toward resolution of their disputed claim. The lack of any stake investment in the outcome of the dispute enables an effective mediator to provide to each party to a dispute unbiased and impartial assistance.
Copyright ©2020 Alan D. Stewart. All rights reserved.