MEDIATION

MEDIATION QUESTIONS AND ANSWERS

 by Kyle Johnson (c)

by Kyle Johnson (c)

 

  1. In the context of a lawsuit, what is mediation?

     

    At its core, mediation is a negotiation facilitated by a neutral third-party for the purpose of arriving at a settlement of a pending dispute.  The neutral third-party is called the Mediator. RCW 7.07 has the following definition:  "Mediation" means a process in which a mediator facilitates communication and negotiation between parties to assist them in reaching a voluntary agreement regarding their dispute.

     

  2. How is the Mediator selected?

     

    Normally, the mediator is a neutral third party selected by the lawyers representing the parties, subject to the consent of the parties. The mediator selection involves considerations of availability i.e., scheduling, the type of case, the issues involved, the background and reputation of the mediator, and consideration of whom the parties will best work with in arriving at a settlement.

     

  3. What is the role of the Mediator?

     

    The mediator is an independent neutral third-party who is charged with facilitating the negotiation and protecting the confidentiality of the process.  The mediator is not a judge with the power to decide your case. The mediator will ask questions that test both sides legal arguments, will focus the mediation on settlement, and may as necessary or appropriate help with evaluation of your case. 

     

  4. How much does it cost?

     

    Cost varies, depending on the skill and reputation of the mediator and the length of time for which the mediation is scheduled.  Cost may also be impacted by the type of case and ability of parties to pay.  The fees of the mediator are usually due in advance of the mediation.

     

  5. What happens during a mediation?

     

    At the beginning, the mediator makes introductions and asks the parties to sign a confidentiality agreement that makes the ensuing discussions privileged and not admissible as evidence in later proceedings. Sometimes there is a brief joint session at the beginning but more often the parties are placed in separate rooms and have little or no interaction with each other during the course of the mediation.  The mediation process is intended to be a negotiation between the parties with the mediator as a neutral party assisting in the negotiation process. Offers and counter offers are exchanged through the mediator.

     

  6. How long does it take?

     

    The length of the mediation depends on the number and complexity of issues, the type of case, the number of parties, and how long the attorneys involved estimate will be needed.

     

  7. What are the pros and cons of going to mediation?.

     

    The pros generally heavily outweigh the cons.  If successful, the case will be settled and the parties avoid the costs of proceeding through further discovery (including expert witnesses) and trial of the case.  If not successful, the parties gain a better appreciation of the strengths and weaknesses of their case as a result of the dialogue that occurs during the mediation process.  Sometimes, there are cases where the parties are so fixed in their positions that a mediation will be of little or no benefit to either side.  Of extreme importance is that the mediation process represents the best opportunity for the parties to create their own settlement with meaningful party participation. 

     

  8. Can I leave the mediation or terminate the mediation if I don't like how things are going?

     

    The mediator will usually ask that the parties stay until the mediator has determined that further settlement discussions are fruitless.  That said, you are free to terminate the mediation and leave on your own volition.

     

  9. Why use a mediator?  Why don't the attorneys just negotiate a deal on behalf of their clients?

     

    The role of mediation is not to foreclose or preclude negotiation between the attorneys in an effort to settle the case.  In many cases, the attorneys do succeed in settling cases without involving a mediator.  In recent years, however, mediation has evolved to the point where lawyers view the mediation process as a day that can be devoted solely to settlement discussions in a confidential forum in which the parties are allowed to participate.  By contrast, In a trial the proceedings are controlled by the judge and the parties participation is limited to testimony.

     

  10. Can a mediator have conflicts of interest?

     

    Yes, and there is a requirement that conflicts must be disclosed in advance. 

     

  11. How can I be assured that the proceedings are confidential and will not be used later against me?

     

    Washington has a mediation statute  (RCW 7.07) that grants a privilege to communications made during mediations; they are treated as settlement discussions and as such are  generally not subject to discovery or admissible in evidence later at trial or in other legal proceedings.  Further, the mediator may not be called as a witness to testify about the discussions. As a result, you may speak freely during a mediation session. The confidentiality agreement signed prior to the start of the mediation provides additional protection.

     

  12. Can I bring a friend or someone along as a support person?

     

    Yes, but whoever you bring will also be bound by the confidentiality agreement that accompanies mediation.  You should discuss this further with your attorney in advance of the mediation if you want to bring somebody.

     

  13. Will I be in the same room with the opposing party?  Can I avoid even seeing the other side?

     

    In mediations involving pending lawsuits, the parties are normally placed in separate rooms and the mediator engages in shuttle diplomacy. Any joint session will be brief and with the consent of the parties and the attorneys.

     

  14. How will I know we've reached a settlement?

     

    There will be a settlement agreement covering the essential terms signed by all the parties, commonly referred to as a CR2A.  The CR2A is binding on the parties and may be enforced in court if one of the parties seeks to repudiate the agreement.  The CR2A will also contain language providing that the mediator will act as a an arbitrator to resolve subsequent issues of interpretation or implementation that may arise during the drafting of final pleadings if there is a disagreement.

     

  15. What if the mediation ends without a settlement?

     

    Settlement negotiations with or without the involvement of the mediator can continue even if the case fails to settle at mediation.  Most mediators will stay involved after the end of the mediation either to arbitrate issues of implementation if there is a signed agreement or to continue assisting with negotiation if there is no agreement.  And the mediation often serves to jumpstart the settlement process so that the attorneys are able to complete the settlement post mediation.

     

  16. What if I don't want to mediate?

     

    That issue or concern needs to be reviewed with your attorney to see if you have that option. Courts are increasingly ordering mandatory mediations. 

     

  17. Do I have to attend the mediation?

     

    If you are physically able, you need to attend. In some cases, being available by phone is sufficient but you should discuss it with your attorney if you are unable to attend. The mediator should also be notified in advance if you will not be present.