In our November 2020 submission we focused on the concept of arbitration as a means of resolving a lawsuit filed in Court. Arbitration is one form of a process generically known as Alternative Dispute Resolution, or ADR. This month we focus on mediation, another popular form of ADR. The White Plains personal injury lawyers at Worby Vecchio Edelman LLP regularly employ the use of ADR as part of a comprehensive method of handling a lawsuit.
What is Mediation?
In its simplest form, a mediation is an out of court settlement conference held between the parties to a lawsuit for the express purpose of settling that lawsuit. We stress the words “out of court” because some Courts hold in-court mediations. That type of mediation, however, is not offered by all courts.
The typical mediation involves the attorneys for all parties to a lawsuit – Plaintiffs and Defendants – retaining a Mediator to “preside” at the mediation session. That Mediator is usually, but not always, a retired Judge. Sometimes the Mediator will be an attorney with expertise in the particular type of case at issue. In many instances, the Mediator will work through a company, which will handle the administrative details of arranging a time and place for the mediation. Prior to the COVID pandemic, a mediation would often be held at the office of the mediation company, or perhaps at the mediator’s office. In these COVID times, the mediation is almost always held on a virtual platform, such as Zoom, or Microsoft Teams.
Each side will prepare a submission so that the Mediator may become familiar with the details of the case; in order to be effective, the Mediator should have a clear understanding of the strengths and weaknesses of each side’s position. In most cases, the Mediation will involve introductory statements, whereby the Plaintiff’s attorney will offer a synopsis of the Plaintiff’s case, and the Defendant’s attorney will then do the same. The Mediator will probably ask the Plaintiff’s attorney for a formal monetary demand if one has not already been included in a written submission. Sometimes, the Mediator will simply summarize each party’s position based upon a reading of the submissions.
After that introductory step, the Mediator will conduct private sessions with each side to explore the likelihood of bringing the parties to a monetary range that the Defendant (or its insurance carrier) will pay, and that the Plaintiff can accept. There could be several such private sessions, depending upon the complexity of the case. Sometimes the real dispute might not involve the value of a case, but rather the position of Co-Defendants, whereby the Mediator has to resolve a dispute as to which Defendant is more liable than the other. The best Mediators will be looked upon as neutral to all parties; knowledgeable in the field; and experience din resolving the most complicated cases.
The Arbitration and Mediation Processes
There are significant differences between the arbitration and mediation process. The most important one is that an arbitration is binding upon all parties that participate in the Proceeding. The Decision of the Arbitrator is final, and is non-appealable in nearly all instances. A Mediation is non-binding; the Mediator has no authority to require a Plaintiff to accept a settlement, or to require a Defendant or its insurance carrier to pay a stated amount to settle a case. The White Plains accident lawyers at Worby Vecchio Edelman prepare for the Mediation well in advance, in order to have the best opportunity for the Mediation to succeed. Even in cases where a case does not settle at a Mediation, it might subsequently settle as a result of the Mediation, based upon progress made by the parties during the process.
When is Mediation Appropriate?
A Mediation is an excellent opportunity to resolve a case in an efficient matter, but not all cases are suitable to be mediated. The process is not free; the Mediator is obviously paid for his or her services, and the fees can run into the thousands of dollars. Of course, trial costs can and do run into multiple thousands of dollars. Certain cases are suitable to be mediated, and certain cases are not suitable to be mediated.
Contact our White Plains Accident Lawyers
Call the White Plains accident lawyers at Worby Vecchio Edelman LLP if you have been involved in any type of accident. We’ll let you know if you do have a case, and we’ll let you know if we think you do not have a case. We’ll tell you whether we think your case is one suitable for the ADR process, and we’ll make sure you understand the entire process from beginning to end. The law firm of Worby Vecchio Edelman LLP and its predecessor firms have been in practice for nearly forty years. Call us, and we’ll put our services to work for you.