“Does this mean we have to go to trial?” I would have to say I hear this question from clients more than any other, generally accompanied by an anxious, pleading look. As attorneys who pride themselves on being prepared to proceed to trial in any case we take on, and doing so with a good deal of success, I think we sometimes forget the type of anxiety our clients feel when facing the possibility of having to tell their story in front of a bunch of people they have never met. As trial attorneys, taking a case to trial is the pinnacle of what we do, so we welcome the opportunity. As laypeople, our clients may not feel that same sense of excitement. So, the short answer to the question posed above is, almost always, “no”. Here’s why:
Once a case is actually filed in court, most judges will enter what is called a scheduling order. This order sets deadlines for certain things to be accomplished, like making amendments to pleadings, completing discovery, and filing motions which would dispose of the case one way or the other. Importantly, this order almost always requires the parties to participate in settlement mediation several months in advance of the anticipated trial date. It is this settlement mediation that frequently results in the case being fully and finally resolved without trial.
In simple terms, mediation is a process whereby the opposing sides to a particular suit come together, along with a trained mediator, and try to reach a settlement. The mediators are lawyers who are specifically trained in ways to bring the parties closer to a resolution. It is the mediator’s job to tell each side about the particular strengths and weaknesses of their case, and how those strengths and weaknesses should cause them to alter their settlement position. As one mediator likes to tell the involved parties, “. . . a mediation is like a junior high dance. At the beginning, the boys are all on one side of the room, and the girls are all on the other side. It’s my job to bring everyone to the middle.” It’s a fitting analogy.
The mediation will typically start with the parties all together in the same room, so the mediator can introduce himself/herself, and give the clients a bit of information about what to expect. After that, everyone goes to their separate corners. The plaintiffs will be in one room, the defendants in another. The mediator generally begins with the plaintiffs, asking us to present a settlement demand. He then takes that demand to the defense, talks with them about how he views the case, and the process goes on from there. Sometimes, it’s over within an hour or so, after it becomes clear that the parties are so far apart, there is pretty much no chance of reaching a resolution. More often than not, however, the process continues for several hours, with the mediator gently, and sometimes not so gently, nudging each side toward the middle. When everyone finally agrees on a figure, the attorneys sign a document acknowledging the terms of the settlement, everyone shakes hands, and it’s over. Just like that.
Obviously, what I have presented here is a very, very rough outline of an important part of the litigation process. If you actually have occasion to become involved in a mediation, our attorneys will spend a significant amount of time with you, explaining what to expect. This short article was not intended to be a comprehensive overview. It was simply a means to relieve some of the anxiety you may feel about going to see an attorney if you’ve been hurt. The vast majority of the cases we handle are settled long before trial. So, try to relax. You don’t have to go to trial.
Image courtesy of Unsplash.