By Scott C. Lloyd, Attorney
I find that a lot of people don’t know what mediation is, or they have preconceived notions about it that are not exactly correct.
Mediation is a focused attempt to get a case resolved by agreement. All the parties to a case and all the lawyers are summoned to a particular place at a particular time. The parties typically are placed in the same building but in different rooms. They exchange offers back and forth, hopefully moving toward a middle ground each time. The goal is to end up with a set of terms that all the parties find acceptable.
It doesn’t always work.
At mediation, there is a person who is called the mediator. This person has accepted the responsibility for trying to the parties to a set of terms that will be acceptable to all.
Most mediators are lawyers, but they don’t have to be. The Alabama Center for Dispute Resolution will also accredit a mediator who has either a four-year college degree and at least 5 years of management or administrative experience in a professional, business, or governmental entity or a high school diploma and 8 years of management or administrative experience in a professional, business, or governmental entity.
At the start of mediation, the mediator will meet with each side. The mediator then will ask one side to make an offer to settle the case.
The first offer to settle almost always is a preposterous highball or lowball offer that everybody knows will be and should be rejected by the other party. The mediator will carry that first offer to the other side, where it presumably will be rejected. Then the mediator will ask that party to make a counteroffer.
The first counteroffer also almost always is a preposterous highball or lowball offer that everybody knows will be and should be rejected by the other party.
After that first counteroffer is rejected, the parties will get serious about trying to get the case settled, meaning they will start making offers that involve actual compromises. The mediator goes back and forth from one side to the other, hopefully carrying a new offer each time.
The shortest mediation I have attended lasted about an hour and the longest one lasted an entire day. In a very complicated case, it could last longer than one day.
It is common for judges to require the parties to a case to engage in mediation. Our judges have more cases assigned to them than they could possibly handle if every case went to trial, so they very often order parties to mediation in hopes that will get more cases settled.
One thing to know is, the parties are not required to settle their case at mediation. It is common for the end report to the judge being that the case did not settle and has to be tried.
“No representation is made that the quality of the legal services to be performed is greater than the quality of legal services performed by other lawyers.”