Until recently, mediation was rarely used to resolve conflicts. Outside of court ordered mandatory settlement conferences, discussion of settlement was infrequent and informal. Crowded courts created pressure to expand the use of mediation and courts began selecting lawyers with little or no training in mediation techniques to hold settlement conferences with mixed results.
At about this same time, a number of retired judicial officers decided to form independent mediation type services . Now there are hundreds of judges and lawyers who do nothing but mediate disputes. There are now courses and even schools where mediation techniques are taught, and the practitioners of mediation have become just as skilled as any advocate or judicial officer.
What Does the Plaintiff Want out of Mediation?
The plaintiff is looking for damages based upon the harm they have suffered. The insurance company is looking for a way to resolve the case expeditiously and extract itself from litigation which is time consuming and expensive. Additionally the company is looking to resolve cases that will bring its company name and practices into public consciousness. If matters can be resolved informally the insurer benefits.
The Role of the Attorney
The role of attorneys in mediation is to present the facts, be an advocate but also to understand that their role is an integral part of the mediation process. If the negative fact is not revealed to the other side, the mediator should be informed, with a restriction on disclosure. The mediator then has to advise the other side but make known to the other side that there is an important factor yet to be considered. It then becomes the responsibility of the mediator to convey in some way that potential threat to the other side. The real question becomes the trust that both sides place in the mediator. Usually that trust evolves with the mediator over a period of time.
Judges have gone into the mediation business not just because they have learned those mediation skills in conducting many mandatory settlement conferences in the past, but also because of the respect that they may command from their often vast experience in the civil trial system. Supplementing this group is a whole industry of mediators who are educated outside of the courts has developed who have further refined mediation and elevated it to a new level as a legitimate technique. These mediators may lack experience but they may often be able to contribute through the application of studied techniques, treating mediation as a science.
The Resolution of a Case
Usually the mediator will require a written document to be executed and signed at the time by both parties to finally resolve the matter. The value of the process is preserved when both sides are ultimately bound and the agreement should be memorialized at the conclusion of the mediation. Even a form settlement agreement should be available from one or both sides and should include the specific terms of settlement. Incorporating these details into the mediation itself can bring a far more immediate sense of finality and avoid the possibility of a party or an attorney to develop "second thoughts."
The Future of Mediation
Electronic mediations that occur by either telephone or audio visual transmissions, are becoming increasingly possible. However, this should not be over emphasized. Face to face meeting has a large part in helping parties come to a resolution and actually meeting is much more likely to result in a settlement.
Another likely development is mediator specialization. When a mediator is familiar with the issues common to a claim cases can be handled more efficiently and accurately.
A standard type of settlement agreement may evolve that will be either brought to the mediation by one side or by the mediator. Certain paragraphs will be selected for inclusion in a final draft of a settlement agreement, printed and signed by all parties at the time of settlement constituting the final document. That could be accomplished today because many firms offer the same form settlement agreement.
Additionally, there may very well be mediators selected by insurance companies after a case is filed, or even before a case is filed. This would provide for a significant cost reduction to the insurance company and to the plaintiff's counsel and would improve the possibility of settlement even before litigation is commenced.
Some companies are willing to negotiate cases before litigation. Insurance companies may encourage this process and expand it. All such mediation efforts would be privileged and not admissible at trial.
Mediation may very well be one of the most important aspects, if not the single most important aspect, of litigation as we begin the next millennium. Hopefully our law schools will encourage and promote problem solving as opposed to pure litigation as a means to an end which is the expeditious resolution of a client's problems.