Mediation, which is succinctly defined as facilitated negotiation, is a nonbinding process. The parties mutually select from our roster of distinguished neutrals a professional mediator to facilitate the resolution process. Prior to the mediation, the neutral reviews memoranda provided by the parties, along with pertinent documents, such as medical reports, expert reports, and deposition transcripts. Unlike submissions to the court, which are too often not properly reviewed, our distinguished neutrals are committed to exceptional preparation to gain a command of the relevant factual and legal issues. During the mediation session counsel and the parties present an abbreviated version of their case and a discussion ensues in open session with all parties and their counsel present.
Following the joint session, the mediator caucuses separately with each side to discuss the strengths and weaknesses of their respective positions. These private meetings with each party, or with one set of similarly interested parties in multi-party actions, may be numerous and are similar to “shuttle diplomacy.” The mediator will generally go back and forth from one party’s caucus to another party’s caucus in order to build a consensus for settlement. The mediator, unlike a judge at a settlement conference, strives to have the parties suggest and agree upon an acceptable resolution rather than imposing one upon them. It is generally helpful to the resolution process if the parties themselves (or a representative from the carrier in cases involving insurance) attend the mediation session and participate in the mediation.