At the outset the mediator will outline the terms of the mediation. He will explain that each side will be given an opportunity to present opening remarks, discuss the issues and often an opportunity for the clients to speak as well. The subject matter of what you will say at the mediation should be discussed in advance. At a later point in the mediation the mediator will take one side or the other and pull them away for a caucus. In the caucus confidential discussions will take place for developing a strategy to attempt resolution.
Generally, all discussions and information provided at a mediation is off the record and can not be used in the litigation.
Once offers begin to be made, it is very common for the process to go back and forth many times. Patience and an open mind are essential.
On entering a mediation you should not have an expectation of "winning". Should there be a settlement it will of necessity involve a compromise. The benefits of a settlement are that it provides a certain result and early resolution.
A few Warnings:
- Do not get angry -- you are likely to say something that will not be helpful.
- All information that will be disclosed at the mediation should be discussed with your lawyer in advance.
- Should a mediation fail, do not show bitterness but rather seek to take something positive away from the process in the hopes of working towards a resolution at a later date.
- Without question, a failed mediation will have an effect on the momentum towards a particular dollar amount for settlement.
