As we discussed in “To ADR or Not To ADR? That is the Question (Part I),” mediation is a popular form of Alternative Dispute Resolution.
Mediation is a highly effective way to settle all sort of accident and insurance cases. It is also used in matrimonial, labor, and commercial matters.
I. What is Mediation?
Mediation is a settlement conference which is presided over by a “mediator.” The mediator can be either a retired judge, a distinguished attorney, or a professional mediator. The mediator is neutral and helps the parties “mediate” the dispute towards a settlement.
Mediation can be in the courthouse before either a judge or other judicial officer, such as a special master or judicial hearing officer. However, in the ADR sphere we shall discuss private mediation arranged and paid for by the litigants.
Mediation is offered by the private vendors, such as National Arbitration and Medation. The private service companies have a stable of retired judges and distinguished attorneys available for mediation. Many retired judges have joined these services.
II. Why Have a Case Mediated?
A private mediation can settle the case faster than settling in the courthouse.
Many of our cases have gone to private mediation. However, some clients have asked why we hired a private mediator rather than settle in court? In other words, is the fee paid to the mediator worth it where we could get the for free in court?
The answer is YES. A private mediation will often settle the case quicker than settlement negotiations in court. Private mediation is an additional tool to settlement neogotiations in court.
The courts do not have the time necessary to mediate all of their cases. Typically, a pre-trial judge will handle about 50 cases in a morning, and he cannot devote the time needed to settle all of his cases. Some cases need time and protracted discussions to reach settlement. A mediator and the parties can take all the time that is necessary, whether it be a few hours, full day, or a few days. The courts cannot always do this.
III. How Is Mediation Done?
Generally, the decision of whether to mediate is with defendant’s insurance company.
If both sides agree to mediate, then a mediation vendor is contacted. Generally, the vendor will have many retired judges and mediators on its panel. The parties attorneys must mutually agree to a mediator from the list.
Once the choice of mediator is made, then the parties schedule a time and place. Typically, a mediation is held in a conference room at either plaintiff’s or defendants’ attorneys office. Occasionally, the mediation will be held at the vendor’s office. On other occasions it might be held at the insurance company when it has scheduled a number of mediations for a “settlement day.”
The client must be available. Generally, the client does not participate in the discussions, and he is available to make a decision on settlement. He may be present in the reception area. In a rare instance, which will be discussed below, the client took part in the mediation. In other instances the client will be available by phone.
Typically, the mediator begins by “breaking the ice” between the parties, such as engaging in small talk or chatting about mutual acquaintances or news events. Although, this has nothing to do with the case, this makes all parties comforatable with each other. Indeed, a mediator might spend 20 minutes “warming-up” the room, but this is not wasted time.
The next subject of discussion is the case.
In some cases the mediator will want each side to submit in advance a brief with copies of relevant documents. In other times the mediator will not want such submissions in advance, but he asks to look at documents during the discussions.
In sum instances the mediator will want formal, oral presentations. Some mediators dispense with formality and go right to negotiations.
IV. Some Sample Mediations
A. A Construction Accident
Our client worked in the office of a real estate development in Westchester County. When leaving his office and driving through the development the client saw a trespasser in an area under construction. The client left his car to warn-off the intruder that the area had ditches and trenches. In attempting to do a good deed the client fell into a trench and fractured his ankle. The intruder disappeared into the night.
The case went through extensive discovery and was marked ready for trial. Defendants were responsive to mediation. We agreed to hire a distinguished attorney who has handled many mediations. The mediation was held in our office and lasted about 2.5 hours. During the meeting the issues of liability and damages were discussed. The mediator meet privately with our side and the defendants in order to hash-out a settlement. Defendants had to call their respective insurance companies and then report back to the mediator. The mediator shuttled back and forth between our conference room, where defense counsel were located, and my private office in another part of our suite.
Finally, a settlement was acheived for $180,000. The client, who had moved to Florida, was involved in the decisions by phone.
B. A Dance Floor Accident
Our client attended an alumni dance at his college. It was under a tent, and it was raining heavily. Rainwater ran down one of the supporting beams onto the dance floor which was covered with balloons. The client fell and agravated his exisitng back injuries. This exacerbation caused him to under go surgery.
The mediation was set before another distinguished attorney who has left private practice to be a private mediator and arbitrator. At the initial meeting it appeared that defendants did not have sufficient medical information, therefore, they could not make a reasonable offer. The session was adjourned so that defendants could obtain such records as well as revisit the case with their insurers. At a second session the case was settled for $300,000.
C. An Insurance Case Mediation
Our client had a private disability income insurance policy which paid $5,000 per month. As a result of an auto accident the client sustained post-traumatic seizures, and he could no longer work.
The client’s disability insurer disputed that the client was unable to work.
During the course of litigation the parties agreed to a mediation. We turned to JAMS for a mediator. Again, we turned to distinguished lawyer who was a full-time mediator for JAMS.
The meeting was conducted at JAMS offices. The client was present throughout the meeting. It was a very contentious and long meeting which went from 2:00 pm to 5:30 pm. Nonetheless, with the perserverance of the mediator the case was settled for a lump-sum of $800,000.
In the examples the parties were saved not only the many weeks involved in a trial but the uncertainty and chance of trial.
Also, in both examples, until the cases were assigned to a trial judge, a pre-trial judge could not spend the same amount of time in settling these cases.
V. Mediation in the Courts
The courts have mediated cases for ages. For example, there is a mediation part in the Manhattan Supreme Court which conducts settlement conferences in all cases before being assigned to a trial judge.
Also, judges pursue mediation where they can.
Indeed many cases are settled in the courthouse. However, due to the volume of cases, not as many cases that can and should be settled are settled in court. The difference between mediation in the courts and through a private service is that a private mediator can spend as much time as necessary on one case. Also, the parties can schedule a private mediation at their own time and convenience.
Private mediation can be very favorable to a client in achieving a speedy and economical settlement.