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.
Our Law Firm’s Approach To Mediation
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 a mediation.
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.