That is called “Mediation.”

Mediation is when the person who is filing a lawsuit and the person being sued meet and try to come to an agreement. The attorneys are there as well as a paid, impartial, neutral mediator. The mediator is in charge of the meeting and his/her job is to try to get both sides to come to an agreement. This happens before a full-fledged trial.

When can I have mediation for my case?

Mediation can be done even before the lawsuit is filed, and if both sides agree to it, they can just get together and try to work it out, without an attorney or certified mediator. HOWEVER, this often results in a shouting match. And you both are even further apart from agreeing to anything! If this happens, often a complaint is filed by the person who believes the other was in the wrong. If it is going to be in Small Claims Court, (for damages under $5000), the judge will order you to go to mediation, and there is a group of mediators generally on standby for the court that day.

If that does not work, and no agreement is made, then the case will be scheduled for trial.

Even if a lawsuit (complaint) is filed in a higher court, mediation may still be made as long as both parties agree. In higher courts there may be extensive “discovery” — in other words, finding out more about the case by questions, documents, admissions, depositions, etc. Usually mediation is more likely to be agreed to and successful, once this is complete.

Once a complaint is filed, eventually it will be ready for trial. There is usually a management conference where deadlines are set before trial, one of which is a date by which mediation must be completed.

Does it matter who the mediator is?

You, or your attorney, may have a preference for a particular mediator. Even though they are impartial, hou may like one’s working style better than another.

When do I have to book with the mediator?

Don’t wait until the last minute to schedule hour mediation. There are a few firms who are very good, abut that all are heavily booked, so expect to have to book it 2-3 months out.

How much does mediation cost?

Costs of mediation arise and are variable because of the mediators hourly rate and your own attorney (if any) fees (if any). The costs are split between sides. Most mediators have a 3 hour minimum, and get about $325 per hour. The longest one I was ever in was 14 hours (they brought in lunch and dinner) — but there were three claimants!

What do I have to do to prepare for mediation?

For a formal mediation, there is not need for a client to get nervous, because if you don’t want to say anything, don’t. The attorneys will give their statements of the case, and present the major factors in their favor. After this, each side goes to a different room, and the mediator goes back and forth, usually ferreting out the weaknesses in the case of the person bringing the claim, but also telling the other side his/er perceived strengths. You should have discussed everything with your attorney and family members, and have an idea of what you are prepared to accept.

Who decides on whether to accept the offer?

Hopefully an agreement is made, but remember it is ONLY your decision to make. You can rely on advice when making your decision but it is, nevertheless, yours, and only yours.

Why mediate?

Occasionally the people are so unshakable in their position that mediation is, indeed, futile. However, this is usually not so as long as unreasonable demands and offers are not made. If this is not so, mediation often succeeds by resolving the case more quickly, and also avoiding extensive costs and inconvenience of a trial. Unlike on television, where the whole process is squeezed into 1/2 hour to 1 hour, expect to spend 5 days sitting, spend about $25,000, and if you have witnesses, they need to be available also for the duration of their testimony. Remember also that just because a case eventually makes it on the court’s schedule (or docket), it does not mean it will be heard at that time, and if not, then it all starts again in 3 weeks.

Won’t I get more if I go to trial?

If you choose to roll the dice and spend the time and effort, it is usually true that you will get more if you go to trial. You must decide if the amount offered in mediation is worth the saving in time, expense and the risk of getting less or nothing.