Mediation as a method of resolving lawsuits has become as popular as LeBron James at a Nike shoe giveaway. In McDonald's like fashion, mediators and mediation programs are popping up all over the place. Judges are ordering parties to mediation earlier than ever after a lawsuit has been filed, and it is not umcommon for parties to a lawsuit to go through multiple mediations in an effort to avoid going to trial.
So what goes on at a mediation? Usually the parties and their attorneys meet in a room with a mediator. There may be some discussion of each party's view of the case, and, depending upon the case, there may be a presentation of sorts (like a PowerPoint or something similar). Then, the parties separate while the mediator talks to both sides separately and acts as a go between in trying to forge a compromise.
Mediation, generally speaking, is a useful alternate dispute resolution tool in settling cases. Some cases really need to be resolved for whatever reason. Sometimes one party to a lawsuit is being entirely unrealistic, and needs to hear about some of the consequences of being unreasonable in his or her position. What's more, sometimes the parties simply have a good faith dispute as to the value of an injury claim, and each are able to "give in" and reach a settlement, which avoids the uncertainty of trial. But mediation is not the "magic pill" as it has been portrayed by some, and definitely has its limitations.
First, some cases just need to be tried to a verdict. I'm tired of hearing from some legal experts, and a small minority of judges for that matter, who say that a trial a "failure" because the parties couldn't settle their differences and had to have a trial. That's like a parent saying to his kid: "I realize the bully has been pummeling you daily, but why haven't you been able to settle your differences with him?"
Sometimes you can't "compromise" with a bully. Occasionally the bully needs to be taken to the woodshed and taught a lesson. This is not a "failure;" it's called justice (It worked for me in junior high anyway in a baseball dugout after I got shelled on the mound as a pitcher and discovered that the bully had filled my high tops with dirt, the last straw in a long line of abuses that ended that day in that dugout...)
Second, it is amazing to me how insulting some insurance companies' initial offers at mediation can be. Going in to any mediation, I tell my clients two things: (1) be prepared to be insulted with the initial offer(s); and (2) be prepared to walk out with civility and politeness if and when it becomes clear that the insurance company is low balling or being unrealistic.