Client's Guide

What is Mediation? Mediation is a highly effective form of settlement conference in which a trained and skilled neutral (the mediator) facilitates communication, reconciliation and negotiation between the parties, in order to achieve the voluntary and mutually acceptable resolution of disputes.

What Are the Benefits of Mediation? Mediation is practical, relatively informal, and unencumbered by courtroom procedures or legal technicalities. In most cases, mediation is significantly less expensive than litigation. Mediation empowers the parties to retain control of the critical decisions that affect their personal, financial, and business interests.

Is the Mediator Like a Judge? No. A mediator does not declare a winner or loser, make findings of fact, or rule on issues of law.

May the Mediator Force the Parties to Settle? No. The parties must decide to settle their dispute and a mediator must not coerce the parties to reach a settlement.

How Long Does the Mediation Process Take? The length of a mediation depends upon the nature and complexity of the case. Most mediations are completed in eight hours or less. Very complex cases may take more than one day to mediate.

How Should I Dress for a Mediation? Dress comfortably. Mediation is an informal proceeding and the parties should feel as comfortable as possible.

Do the Parties Directly Participate in the Mediation? Absolutely. The parties own the dispute and are encouraged to be active participants in the mediation process. The parties may participate and speak in the joint sessions and the private caucuses. Your attorney will advise you on the nature and level of your participation in the mediation conference.

Do Lawyers Participate in the Mediation? Yes. The lawyers prepare their clients for the mediation, prepare a premediation submission for the mediator, make an opening statement, and assist their clients with negotiations. The lawyers do not make evidentiary objections like they do at trial, and adapt their trial skills to the more conciliatory theme of the mediation process.

How Does the Mediation Unfold? Every mediation is different and the process is flexible. Good mediators use the best format for a particular case. Generally speaking, the phases of a mediation are as follows: the mediator introduction; opening statements in joint session by counsel and the parties; private sessions (called the separate caucus); additional joint sessions (if necessary); and, drafting a memorandum of agreement if settlement is reached.

What is the Separate Caucus? The separate caucus is an opportunity for the mediator to meet privately with each side. The communications in such private meetings are confidential. Unless the mediator is authorized to disclose something to a party in another room, the mediator discloses nothing. The initial caucus is case evaluative in nature. The mediator, as a neutral with no interest in the outcome of the dispute, plays devil's advocate and asks the parties to identify both the strengths and weaknesses of their case. There may be substantial periods of time of waiting while the mediator talks to the other side, so you may want to bring something to read or do.

Who Should Attend the Mediation? The parties and lawyers attend. Further, should insurance be involved, a representative fully authorized to resolve the dispute should attend. In cases in which structured settlements are involved, structure specialists should attend. Any necessary decisionmaker should attend. In cases involving governmental entities, representatives whose recommendations will be strongly considered should attend. In medical negligence cases, the physician should attend. Should there be any questions regarding who should attend, counsel should arrange for a conference call with the mediator before the session.

Will the Mediator Ever Be a Witness? No, the law provides for confidentiality. Should the matter not resolve, the mediator may not testify or be compelled to testify.

Does the Mediator Tell the Court What Occurred at the Mediation? If the mediation is court ordered, the mediator submits a report to the court that the mediation took place and that the matter did or did not settle. Otherwise, the mediator discloses nothing else to the court. If the mediation is voluntary, and not court ordered, which is normally the case, then the attorneys involved will notify the court if the case settled.

Does Mediation Work? General statistics indicate mediation resolves over 70% of all disputes. Private mediators report successful resolutions in over 80% of all disputes.

What If the Matter Does Not Settle? The parties, by virtue of their participation in mediation, do not lose their right to trial. Many cases, which do not settle at the mediation session itself, do settle prior to trial. At the very least, mediation often narrows the issues and thereby streamlines the trial.

What Are the Advantages of Mediation? Mediation minimizes costs, avoids delay, and also avoids risk. No one knows with certainty what will occur at trial, or what kind of jury will be drawn. Further, mediations permit the parties to participate directly in forging a consensual agreement. Parties feel more in control. Amiable agreements leave open the possibility for future relationships. Early resolution of disputes allows the parties to avoid the rigors of discovery and trial.

How is Mediation Accepted in South Carolina? Mediation has been routinely used in all parts South Carolina for over a decade and is supported by the judiciary. In some counties, mediation in certain cases is mandatory, and such mandatory mediation may be expanded throughout the State. The Rules of the Federal Court for the District of South Carolina requires mediation in most civil cases. Further, mediation is routinely and successfully used throughout the United States and now abroad as well.

What Do Participants Think About Mediation? Public and private surveys demonstrate that consumer satisfaction with the mediation process is extremely high.

[Adapted by Daniel R. Denton from a form provided by Eric Galton, Mediator, for publication in ADR Personalities and Practice Tips, ABA, 1998.]

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