Well, your attorney finally told you that your lawsuit is moving forward, and the other side wants to mediate. "Great," you think, "what the heck is that? What happened to the trial?"
Quite simply, the lawsuit still exists, mediation is merely an easy way to resolve your case without the additional expense of trial. A mediation occurs because both sides believe they can "win" by paying a little more or less money to end the lawsuit. Both sides believe they’re "exposed", which could cost money in the end. This means, if you’re a plaintiff, then your case has some problems that could cause a jury to find in the defendant’s favor, and vice versa if you’re a defendant.
The goal of the mediation session is to enable each side to win by either taking less money, or paying more money, to settle the claim.
The fundamental rule for participating in the mediation session is that you must be willing to settle the claim at mediation. If you’re not willing to accept any offer below (or above) your "magic number," mediation will not work, and you’ll pay more in attorney’s fees.
If you’re willing to change your position, mediation can be a huge boost to a swift resolution of the claim.
So, how does the mediation session work?
Most mediation sessions occur in another office or a judge’s chambers. The mediator is usually a full-time attorney with mediation experience, or a judge. However, there are no particular requirements that the mediator have a legal degree. Sometimes, non-lawyers can be great assets to settling the claim because of their unique, non-legal perspective. Oklahoma does have a set of requirements that individuals must meet before qualifying to become a mediators. You can read the rules in 38 O.S. 1825.
Usually, at the beginning of the mediation, all parties will meet together in a large conference room, or in the judge’s chambers. The mediator will explain some ground rules (usually for your benefit), and then discuss some preliminary issues, and have each side present its opening statement.
Following the introductions and statements, the mediator will separate the parties. The mediator will meet with each party privately, and begin attacking their side, and the problems with the case. If you feel like the mediator is being tough on you, you’re right. The point is to get you to evaluate your claim, the likelihood that you’ll succeed, and make a reasonable demand for settlement. Don’t worry though, the mediator is attacking the other side just as hard, if not harder, because of the problems with their case.
You should feel free to discuss your options with your attorney. If you’re not comfortable with the proposals, let your attorney know. Believe me, your attorney knows the value of your case based on his/her experience. Your attorney knows the types of jury verdicts in your type of case.
Remember, the point is to make a reasonable settlement request, to accept/pay more or less than you’d planned, and feel relatively comfortable with the outcome. Mediations help avoid a one-sided victory (yours or theirs).
