What is a mediation? In our practice, we are often asked by the lawyers
on the other side to either mediate or arbitrate our cases. These are
often confusing concepts for our clients.
Last week in Columbus, Ohio, managing partner, Rob Sachs, Jr., spoke about
how to communicate more effectively in mediations during a continuing
legal education program entitled "Connectionology". Also speaking
with Attorney Sachs were outstanding lawyers and trial support experts
from around the country including: John Romano (West Palm Beach, FL);
Harvey Moore, Ph.D. (Tampa, FL);
Steve Gursten (Detroit, MI); Dan Volkema (Columbus, OH) and others.
Unlike an arbitration where a decision is rendered at the end of the process,
a mediation involves a neutral third party attempting to help the parties
reach a meeting of the minds on the settlement value. If an agreement
is reached, it is enforceable as a contract between the parties and either
side could sue to enforce the contract if anyone ever had a post-mediation
change of heart.
In our mediations, we always speak with our clients well before the mediation
to prepare them for some of the more difficult aspects of a mediation.
For example, it is likely to be an emotion-laden day. In many cases, it
is the only time you will ever tell a neutral third party what you have
been through. We want our clients to be ready for the emotional responses
which we know will be evoked by this process. Clients are often nervous
about whether they should speak at the mediation. There are good reasons
in different cases to answer this question differently. Also, will the
client speak in front of the other side or just to the mediator? These
are the types of questions we deal with even before you ever walk into
No matter what, you should know that we never want to take you into a mediation
where you are essentially tossing in the towel. As our late partner,
David Shrager, always used to say: "the only way to get a full and fair settlement,
is with full trial preparation." We always mediate with that advice
guiding our strategy.