What Will Happen at My Mediation?
A mediation is an opportunity for you to try to resolve your dispute by discussion, negotiation, and not having a decision forced down your throat. Usually a mediator will split you up at some point in the process. Sometimes we'll start all together, us and the other side in the same room. Sometimes it's important to hear a little bit about what they have to say. A lot of times at mediation, it's a chance for someone to just get something off their chest. They may have something they feel like they really need to tell you or really need to tell the mediator or really need to tell me, and this is their chance to do that.
After we've had a chance to get together we'll split off into different rooms. The mediator then acts as kind of a diplomat, he or she will shuttle back and forth between the rooms. They'll start in one room, get a better understanding of the case, what we think are the high points, what we think are the low points, and why we think that. Then the mediator goes into the other room and does almost the same thing and understands from that side what they think is best about their case and what they think is worst about their case.
Many mediators practice in this area all the time. A lot of them are retired judges, so they have the opportunity to give you a perspective that says, "When I was on the bench, here's what I heard a lot of. Here's what I saw all the time," or, "if I were ruling on your case, I would rule for," one side or for the other side. That mediator will then continue back and forth and try to get a resolution. Usually in a case involving a commercial dispute, it's really about money. So the mediator will start with one side and say, "How much would you accept? What are you willing to take in order to go home today?" Then go into the other room and say, "Well, this is how much they want." And most of the time that's not going to get it done.
The person in the other room will say, "Why, that's outrageous. I'll never pay that much, but I'll pay this much." The mediator will then say, "Well, why do you think that's the right number? What do you think is good about it? What's wrong with the number I brought you?" Mediator then comes back into our room and says, "They're willing to pay you this much. Would you take that?" And I say, "Absolutely not, that's not nearly enough. Here's what we need to do." And we explain why there's a different number. And back and forth we'll go through a couple of rounds. Sometimes this can be done in an hour or two, sometimes it can take all day. Sometimes at the end of the day you still may have gotten closer, but you're not where you want to be. And a lot of cases won't settle until a week or two weeks down the road.
But the mediation process is extremely valuable as a way to try to resolve a dispute without having to spend a lot of time and energy going to court, filing a lot of motions, and waiting for a judge or a jury to decide what's going to happen. Because remember, it's your case and this way you get a lot more input.
About the Author: Tom Moring, is a partner in the Phoenix law firm of Jaburg Wilk. His practice emphasizes complex real estate and commercial disputes, creditor's rights, tort litigation and collections matters. He has extensive experience in managing and performing all aspects of litigation from initial investigation through discovery to trial.