What is Mediation?
Mediation is where a neutral third party reviews your case and tries to help everyone come to an agreement to settle the case. It can be amazingly helpful in settling cases as it puts pressure on both sides to evaluate their position and hear how a third party interprets their case for the first time. There have been many cases that I thought were going to go to trial only for them to settle in mediation (and others that I thought would settle but did not).
The process itself is generally the mediator talks to both sides to set the ground rules and then from that point forward has each party in a different room with the mediator going back and forth. This allows the emotional component of the case to be taken out of it and as a result, both parties tend to be more reasonable than without the mediator.
Importantly though, there is a confidentiality during all mediation proceedings. This is actually codified by our legislature where any document prepared for mediation, or any discussion had during mediation is not admissible during a subsequent court proceeding. This means that both sides tend to be very open about their position. As such, not only are you getting feedback from the mediator about the strength of your evidence, but the mediator will act as a bit of an advocate using the opposition’s evidence against you. This has the benefit of allowing you to evaluate the strength of both positions and also allows you to know what the other side thinks the strengths and weaknesses of the case are.
During the litigation process you rarely get to see what the other side’s strategy is for trial. Yes, if you use discovery correctly you should be able to find out what evidence the other side plans on using, but you have no way of knowing how they will use that evidence, or why they think that evidence is important to the case but mediation allows you a window into what your opponent is thinking.
So while the purpose of mediation should always be to settle the case, with the best results coming when both sides have an open mind, but even if negotiations fail, you at least gain valuable insight into your opponent’s strategy to use at trial.