Mediation is a form of Alternative Dispute Resolution, or ADR, in which the parties and their attorneys meet with a Mediator, who attempts to guide the parties to settlement. Although other types of ADR are available (binding and non-binding arbitration, and neutral case evaluation), mediation is by far the most common.
Unless they settle very early in the litigation, almost all estate and trust litigation cases, contested conservatorships, and elder abuse cases will go to mediation. In Contra Costa County, the court will typically order the parties to mediate after the first or second hearing. The same is generally true in Alameda County and Santa Clara County. In securities litigation cases, FINRA, the securities industry regulator, has its own mediation process and procedures.
After agreeing to mediate, the parties must agree on a Mediator, typically either a local attorney who has completed mediation training and qualified for a court-approved mediation panel, or a professional mediator who may or may not be an attorney.
The choice of a mediator is very important, and our selection usually depends on the nature of the case. In cases involving technical questions of estate and trust law, we may want an experienced attorney certified as a specialist in Estate Planning, Trust, and Probate Law. If inflamed emotions or family discord is the primary obstacle to settlement, a full-time Mediator, even a non-attorney, may be more appropriate. Our most recent mediation, for an institutional client in Pleasant Hill, was conducted by an attorney and former probate judge pro tem in Concord. In a case between a husband and wife from Danville, we chose a non-attorney mediator in Lafayette.
Although every Mediator has his or her own style, most tend towards either a “collaborative” or an “evaluative” approach. A collaborative Mediator is generally less concerned with the strength of each party’s case (i.e., who is going to win), and more concerned with bringing the parties together, issue by issue, until the parties begin to glimpse the possibility and benefits of settlement. An evaluative Mediator is more likely to point out the weaknesses in each party’s case in an attempt to convince each side that settlement is better than losing at trial. Again, which style is preferable depends on the nature of the case.
Mediation usually begins with all the parties and their attorneys in a conference room, where the Mediator describes the mediation process and confirms that anything said in mediation is confidential and cannot be used at trial. After the general session, the parties typically go to separate rooms and the mediator meets with each side alone, shifting back and forth from party to party with an offer, counter-offer, offer, counter-offer, and so on and so on, with the distance between the plaintiff’s demand and the defendant’s offer hopefully decreasing from round to round. It can be a tedious process.
It is important to note that while each side has a chance to tell its story and present documents to the mediator, no one testifies under oath and no witnesses are called. Moreover, the Mediator does not render a decision, so a case cannot be “won” at mediation. In this respect, the parties truly succeed or fail together: both parties win if the case settles, and both parties lose if it does not. If the case settles, the settlement is memorialized in a written settlement agreement drafted by the attorneys, often after mediation has concluded. If the case does not settle, the case resumes and the parties progress to trial.
One key to a successful mediation is performing discovery prior to the mediation, so that the opposing party has given testimony under penalty of perjury prior to the mediation.
Our experience has been that mediation is a crucial part of the litigation process. Although we try to settle cases before they begin, and continue settlement negotiations throughout the litigation process, mediation is usually the best opportunity to settle a case before the parties incur substantial attorneys’ fees preparing for trial.