Parties may attempt mediation before going to trial. The decision to mediate a claim can be an agreement between parties or ordered by the court. It is normally done after discovery has closed, so that both sides have all the information that they will have at trial—a full picture of the case. Below is a brief description of the process of mediation.
Parties Involved In Mediation
Mediation is, at its core, a voluntary means of alternate dispute resolution. Kansas law defines “mediation” in Section 5-502(f) as an outside party with no authority to decide the issues “assist[ing] the parties in reaching resolution.” However, despite its voluntary nature, mediation may be required by the court before a case may be tried. And though the parties are not required to reach an agreement via mediation, failure to put effort into reaching an agreement can result in sanctions—court imposed fines—against that party pursuant to Section 5-518. Most parties are willing to try mediation, as it is generally a “nothing to lose” situation that may resolve the case.
The first step prior to mediation is selecting a mediator. Mediators are generally experienced attorneys or retired judges. The benefit of using seasoned veterans of trial work is that they can provide insight as to what is likely to happen at trial, down to whether a key piece of evidence will come in or how a jury will perceive the parties. The court may offer a list of qualified mediators, or the parties may agree upon a mediator amongst themselves. The mediator must not have any interest or connection with the litigation or parties. For example, the mediator cannot be a partner at the defense attorney’s firm or a shareholder of a defendant corporation.
Once a mediator is selected, the mediation will be set for a future date. Generally, mediation takes place at the office of either attorney or the mediator’s office. The attorneys for each side must attend mediation. Additionally, the plaintiff and defendant generally also attend, though they may attend via phone. When a party is an entity, such as an insurance company, the representative sent must have the ability to settle the claim on behalf of the entity. In Price v. Clark, the defendant insurance company was twice sanctioned for failure to mediate in good-faith; the second time, the defendant had sent an insurance adjuster to the mediation, but the adjuster lacked any permission to settle the claim for any amount, even zero dollars paid out by the company. This rendered the mediation useless, as no agreement could be reached through the process, and the court required the defendant to pay a fine, as well as compensating the mediator and opposing attorney for their wasted time.
Day Of Mediation
Upon arriving, the parties are divided into separate rooms. The process involves the mediator going between rooms and discussing the offers and counteroffers with each party. Each mediator has a unique style and method of conducting these discussions. Most mediators will visit with the plaintiff first, discussing the claim, the judge that has been assigned, and noting what the mediator believes are strengths and weaknesses of the case. An opening offer is given, and the mediator goes to discuss the same matters with the defendant. The mediator will rely on his or her experience with trial work to provide opinions on strategic considerations, such as how “likeable” the plaintiff is or the judge’s approach to admitting questionable evidence. This is simply done as a matter of “talking out” the claim with each side, as the mediator’s ultimate goal isn’t to force a settlement: it is just to facilitate negotiations between adverse parties.
This back-and-forth process continues, with each side (hopefully) coming closer together in its offers. If the negotiation reaches an offer that each side agrees to, the mediator will bring all parties together to agree to specific terms. The parties will likely sign an agreement, though they may simply verbally agree and complete a “handshake deal” that is written up later. However, once a party has accepted the offer of its opponent, there is no getting cold feet. The decision is binding, and if a party changes its mind the opposition can bring the matter before the court to enforce the settlement under Section 5-514. The party trying to back out of the agreement may also be liable for the attorney’s fees of the other party, and perhaps even a fine for bad-faith in mediating the claim. Once the mediation agreement is enforced—whether voluntarily as agreed or by court order—the case is dismissed and no trial is needed.
On the other hand, the two sides may not reach an agreement. At any time in the mediation process, either side may tell the mediator that the party’s bottom-line or top-dollar offer has been reached. The mediator will take this final offer to the other side, and if the number is too far off from what that party wants, the mediator will likely end the process. However, if the numbers aren’t terribly off, the mediator may return with an offer even though it is beyond what the other side has stated they will agree to. That party may decline the offer, or it may consider taking or paying the new amount to avoid further litigating the case. A strong mediator will anticipate when an offer may be in this gray area, and work to facilitate the agreement with this extra negotiation. However, if the parties do not agree to a settlement offer, mediation will end and the parties will continue on to trial. Whether or not an agreement is reached, each party will split the mediator’s fee to compensate him or her for the service.
For more information on the next step of the Personal Injury Trial Process, please see the below link.
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