Mediation Tips and Advice for Your Personal Injury / Employment / Wrongful Termination Case

Mediation is one of the most popular and common ways of settling/resolving many kinds of civil cases, including family law to personal injury, employment, wrongful termination, and medical malpractice cases. Mediation is an informal process where the parties to a dispute hire a so-called mediator or "neutral", who is typically either a practicing attorney, experienced in the same area of law or a former judge, present the case and their respective arguments to him, and engage in the negotiation process in an attempt to eventually strike a deal through mutual agreement and monetary compromise.

Normally, mediation works as follows: the parties agree on a mediator, set a date for the mediation, submit their mediation briefs to the mediator to familiarize the neutral with their side of the case and their respective claims, arguments / defenses. Mediation briefs may or may not include a settlement offer that each party makes at the outset of the mediation, indicating where they would like the negotiations to begin from. Usually, the plaintiff will make a high settlement offer so that there is space to move down during the negotiations, and the defendant will make a low or no settlement offer to indicate where they would like to start from or to send a message, as they often do, that they are not intending to be overly generous, regardless of what their eventual position will be during the mediation. Then, during the mediation, the goal is for both parties to move closer toward each other in attempt to reach a settlement that will not be perfect from each side's perspective, but would be an acceptable compromise. 
 
Mediation usually takes a whole day, and in some cases more than one day.  So, why are mediations so popular?

There are at least three significant advantages to the mediation process:

1. Mediation is voluntary. No one can force you or the other side to participate in a mediation or settle your case at your mediation. If at the end of the day you don't want to accept the offer that was made by the other side, you don't have to.
2. Meditations are confidential by law. Neither you nor the opposing side can use anything that has been said during the mediation later in the process against you, if the case doesn't settle. For instance, at trial, neither party can talk about how much they were willing to offer or accept at the mediation, which means that your negotiation strategy during the mediation cannot really hurt you if the case doesn't settle at the mediation. Above all, mediation provides great opportunity to have some kind of  certainty and closure - to finish the case and move on with your life, even if you don't get everything you were hoping for in a settlement.
3. Mediation is not a hearing. You will not be testifying like you would at trial or arbitration. This is a far more relaxed and informal process where you should feel comfortable discussing all aspects of your case with the mediator.

Because statistically so many cases turn out very differently from what the parties expect, for better or for worse, mediation process provides parties a certain degree of control over the outcome of their case, rather then leaving the decision on their case up to the jury of eight or twelve strangers or a judge. Further, a successful mediation will likely significantly reduce the costs of pursuing the case, such as expert witness costs, trial costs, jury fees, etc.

Below is a number of useful tips for plaintiffs who are about to attend their mediation:

• Be patient. Mediation is often a long process that lasts a whole business day or longer. It often starts from a point where the parties are quite far from each other - whether the Plaintiff is asking for way more than the employer or the insurance company is willing to pay, and where the Defendant starts with an insultingly lower offer. This is normal, and it's part of the "game." Don't let the opening offer turn you off or discourage you. It's just that - an opening offer. No one starts with their bottom dollar at the start of the process, and everyone wants to have space to move in order to get the maximum benefit from the process. For you, it's naturally getting the highest settlement possible. For the opposing side, whether it's an employer or an insurance carrier or a hospital - it's minimize the amount they have to pay in order to resolve the case.
• Keep an Open Mind. One common obstacle that Plaintiffs have before coming to mediation is the mindset of having a certain settlement figure in mind, below which they tell themselves they will not go, no matter what. While it's good to have some expectations, you must avoid having that kind of rigid position before going to mediation, and instead listen to the other side's arguments and listen to the feedback from the mediator to whom you paid to try to resolve the case. No case is perfect, and your case is not an exception.  It's only natural that there will be some good facts and some bad facts in your case. Part of the value in mediation is better understanding your case and the risks/benefits of settling v not settling and moving to trial. This is especially true in wrongful termination cases, where the employee and the employer almost always have a completely different version of why the claimant was terminated.
• Don't Take the Mediation Process Personally. I realize that it's easier said than done, but you must keep in mind that if you sued an insured business, negotiating a settlement with you is nothing more than a business decision to that insurance carrier. They are in the business of trying to save money in whatever way they can. Generally, it has little to do with how they feel about you personally. Don't be insulted by a very low offer in the beginning of a mediation by the defendant. This is very common. The initial offer is of little, if any, indication of where you might end up at the end of the mediation process. It is also a much better idea to focus on how the mediation proceedings and the resulting settlement will benefit you rather than how they will hurt or punish the other side. Remember, your mediation is the time to look after your own interests and not worry so much about punishing the other side and making them pay.  This is especially true in wrongful termination cases, where the individuals that discriminated against you and terminated you are almost never the ones who will be held personally liable for any compensation that will be paid to you in your case.
• Ask Questions. It's important that you feel that you made the right decision at the mediation. The right decision must be an informed one. Ask your attorney and the mediator questions about your case, so that you have the full picture of how the case might unravel in court, if it was to go all the way to trial.
• Be nice. This applies to every stage of litigation, including mediation. I have never seen an employer or an insurance company write a larger check to a Plaintiff or his/her attorney because they were mean, rude, overly aggressive or because they had an entitlement mentality, acting like the world owes them certain benefits. Being polite and courteous with the other side is always the way to go. This is especially true if the insurance company is the decision maker on paying out any kind of settlement. You simply have no reason to be angry at them.  They were not involved in your termination or in your car accident or in the medical procedure that has gone wrong, so there is no reason to have any kind of animosity toward the claims person. If you have to face someone that you don't like, such as you former supervisor or the defendant driver, still - being polite and civil with each other during the mediation will serve you much better than starting any kind of argument.
• Keep Yourself Occupied. Because your mediation might take many hours, during which there are long periods of time when the mediator talks to the other side, and you are simply sitting in a room waiting for the mediator to come back to you, it's a good idea to have something to keep you busy, such as a laptop, a book, or anything else that could keep you busy/entertained during those hours.  

I generally meet with all my clients about one week before the mediation to further explain how the process works, to go over the case and the strategy for mediation, and answer any questions about the mediation to make sure that you are 100% comfortable with the process and no what to expect.   

Remember, successful mediation necessarily involves compromise. To reach a settlement and forego the risk of the uncertainty and expense of trial, both parties must compromise and move from their initial position. Often, by being a little more flexible than you initially thought you could be, you might also gain the ultimate benefit from the mediation proceedings - getting your dispute resolved and moving on.  

For specific tips on EEOC or DFEH mediation please visit this page.