How to Succeed in Mediation!

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Before your civil case goes to trial, you will likely participate in Mediation.  Mediation is a voluntary, confidential process where a neutral third party, called a mediator, helps the parties try to negotiate a mutually agreeable solution to their legal dispute outside of Court.

In North Carolina, Mediation is commonly required in most Superior Court civil cases. The N.C. Superior Court Mediation process is governed by the Rules for Mediated Settlement Conferences and Other Settlement Procedures in Superior Court Civil Actions.  See N.C. Gen. Stat. § 7A-38.1(c). 

Importantly, Mediation isn’t a trial, and the mediator doesn’t decide who’s “right” and “wrong.”  Instead, Mediation is a confidential negotiation where the mediator helps the parties explore settlement options.  The goal of Mediation is resolution, not vindication. 

1.     Before the Mediation

The first important step is choosing your mediator.  Mediators are often retired judges and lawyers.  An experienced trial lawyer will be able to recommend mediators best suited for your particular case.  If the parties don’t agree on choice of mediator, then the Court can appoint one.  Once a mediator is selected, the parties schedule the Mediation date.

Preparation is key to a successful Mediation.  Your lawyer should have an in-depth knowledge of your case’s facts, evidence, and legal issues.  Your lawyer should have your case’s pleadings and discovery responses organized and accessible for quick reference.  Prior to Mediation, an experienced trial lawyer will have identified and addressed your case’s strongest arguments and its weak spots. 

Before Mediation, your lawyer should discuss with you your settlement strategy, goals, and limits.  Your lawyer should give you a realistic analysis of your chances at trial, including your potential best-case and worst-case scenarios.  Your lawyer should help you identify the minimum monetary amount you’re willing to accept at Mediation, and discuss with you potential alternative solutions, like payment plans.

2.     During the Mediation

The first part of Mediation is the Opening Session.  During the Opening Session, the parties and their counsel are in the same room, together with the mediator.  Initially, the mediator will explain the Mediation process and the ground rules (confidentiality, respect, voluntary participation, etc.).  Then, the parties’ lawyers each give an opening case summary presentation.  The Plaintiff (the party who filed the lawsuit) generally goes first. 

For the skilled and experienced trial lawyer, the Mediation’s Opening Session presentation is the “dress rehearsal” for the trial’s Opening Statement.  The Opening Session presentation should highlight the key facts and legal issues of your case.  Especially in cases with robust photographic evidence, multimedia presentations (PowerPoint, etc.) can be utilized.  An effective Opening Session presentation is clear, persuasive, and concise.  The goal is to display the strengths of your case to the opposing party.  During Opening Session, you should remain calm and respectful; emotional outbursts can derail negotiation progress.

            After the Opening Session, the parties split into separate rooms.  The mediator then meets with each party separately to explore settlement options and discuss the case’s strengths, weaknesses, and goals.  These discussions are confidential, and the mediator won’t share anything you say without your permission.  But still, it’s important to be mindful of how much you say to the mediator about your settlement positions during ongoing negotiations.  An experienced lawyer will know when to “push” in your negotiation, and when to compromise.  The mediator will shuttle between the rooms, conveying offers and counter-offers between the parties.  

Mediation can last hours, or even days!  It’s common for opening offers to start far apart.  In Mediation, negotiation movement typically happens gradually, over the course of multiple offers.  If the parties ultimately reach a negotiated agreement, then the mediator will help draft a Memorandum of Settlement, which is contractually binding on the parties once signed.  The Memorandum of Settlement should include all the essential settlement terms, such as payment deadlines, release language, dismissal terms, etc.

If the parties are unable to reach an agreement, this is called an “Impasse.”  If the parties reach an Impasse, then the mediator will report to the Court that the Mediation was held but no settlement was reached, and the case continues to trial.  The substance of what was said and offered at Mediation remains confidential.  But even if your case doesn’t settle at Mediation, Mediation is still a valuable fact-finding opportunity, in that you’ve learned how the other side values the case and what matters most to them.  And even after Mediation, the parties are still free to settle their dispute at any point prior to trial.

            The goal of a successful Mediation is problem-solving, not necessarily “winning.”  Generally, ideal Mediation outcomes leave both parties slightly dissatisfied, but relieved at the dispute’s conclusion.  A successful case resolution at Mediation allows you certainty, control, and closure, which are things that a trial can’t always provide. 

3.     Pro Negotiation Tip: Know your BATNA!

As any skilled and experienced trial lawyer knows, you must always be mindful of your BATNA in any negotiation.  Coined by Harvard negotiation theorists Roger Fisher and William Ury, “BATNA” stands for “Best Alternative to a Negotiated Agreement.”  Essentially, your BATNA represents what would happen to you if no settlement were reached.  At Mediation, the common BATNA is that the case continues toward a contested trial.  Throughout your case, your lawyer should be taking steps to strengthen your BATNA and weaken the opposing party’s BATNA. 

Your BATNA is important because it defines your “walk-away point” in the negotiation.  For instance, if your BATNA of going to trial is stronger than the potential deal “on the table,” then you should decline that deal.  Knowing your BATNA prevents negotiation desperation and strengthens your bargaining power.  By comparing any settlement proposal against your BATNA’s expected outcome and costs, you can evaluate offers more rationally and effectively.

For example, let’s say your hypothetical lawsuit seeks $100,000 in compensatory damages.  But your trial lawyer estimates: (i) a 50% chance of winning at trial, due to evidentiary issues; (ii) $10,000 in expected expert witness fees prior to trial; and (iii) roughly a one-year wait to trial.  In that scenario, your expected BATNA value might be around $35,000 to $40,000, all factors considered.  So, a $50,000 settlement at Mediation might be a better outcome for you than the time, expense, and risks of trial.

4.     Conclusion

Mediation is a common, and often-required, part of the litigation process.  Preparation is key to a successful Mediation.  Prior to Mediation, it’s important to have a keen knowledge of your case’s strengths and weaknesses.  At Mediation, your lawyer should help you present a clear and concise Opening Session presentation.  And during any negotiations, you should always be mindful of your BATNA.  In this manner, a skilled trial lawyer can help you obtain the ideal Mediation outcome for your case.

When it's your case on the line, you want a trusted and experienced trial lawyer by your side. Attorney Peter Isakoff has handled thousands of civil cases in Court. If you need representation for a civil dispute, please contact The Law Offices of Peter Isakoff anytime, day or night, at (336) 863-8348 (Main) or (336) 864-9115 (Español).

DISCLAIMER: The information in this article is provided for informational purposes only. It is not offered as and does not constitute legal advice. The accuracy of the information may change pending changes in applicable law. If you have questions about a specific matter, you should contact a lawyer. The use of this article or any information provided in it does not establish any lawyer/client relationship.