Mediation is a form of “alternative dispute resolution” that can be a valuable alternative to litigation and trial.  Sometimes parties to a dispute mutually agree to submit their dispute to mediation without any requirement from a court to engage in mediation.  In addition to such “voluntary” mediation, many of the Circuit Courts in Maryland require parties to litigation to engage in a court-ordered mediation process after the discovery phase of the case is completed and prior to a pretrial settlement conference held before the court.  Either way, mediation involves all parties to a dispute working with a professional mediator trained in conflict resolution, to seek a negotiated resolution of the dispute. 

 Mediation is more informal than court proceedings.  Although it is often held within the context of an adversarial dispute, mediation itself is not an adversarial process.  Mediation sessions typically are held in an attorney’s office with all attorneys and parties present, along with the mediator. Nothing is officially recorded, and nothing which is said during the mediation can be used against you (or against the other party) in any subsequent legal proceedings.  The mediator is not a judge, and his role is not to adjudicate the strengths or weaknesses of either side’s case.  Instead, the mediator will try to find areas of agreement or ways to settle a dispute without starting (or continuing) litigation.  Mediators are useful because they are independent third parties who can look at a case objectively and provide everyone with unbiased feedback.

During a mediation the mediator often will begin with a brief statement explaining his credentials and his “ground rules” for the mediation.  Then the attorneys will have an opportunity to give a brief statement setting forth their respective clients’ positions regarding the case.  One of the things you should think about, prior to a mediation is how involved (or uninvolved) you would like to be during the mediation.  Mediation is a process to resolve your dispute, and is often most effective when the discussion is driven more by the parties than by the attorneys.  However, different mediators have different styles, and your level of participation also can be adjusted according to your comfort level. 

The mediator will explore ideas for settlement, addressing questions to the attorneys or the parties.  In some mediations the majority of the proceedings take place with everyone in the same room.  More typically, the mediator may suggest private meetings between the mediator and one side or the other, or just with the attorneys.  Prior to mediation, you should think about the topics you wish to discuss in front of the other party, and the topics that you wish to discuss directly with the mediator outside of the presence of the other party.  If you are not sure, you can always speak with your attorney or with the mediator privately at any time during the mediation.  In addition, you may always ask that the mediator not share particular information with the other party.

You always should be cordial with all parties, attorneys, and the mediator throughout the mediation.  Try to focus on the problem, and not on the other party.  This can be difficult!   Do not be afraid to direct your comments to the other party, if you wish to do so.  Feel free to look the other party in the eye and tell them how you feel.  During the mediation, you may wish to write your comments or feelings down to clarify your thoughts, if you think this will be helpful.  This may be one of your last opportunities to address the other party and tell them how you feel.

Another thing to think about in preparation for a mediation is how you would like this case to settle.  Is there anything specific you would want from a settlement?  Is there anything you are willing to give up?  Think in terms of monetary, as well as non-monetary, aspects.  The mediator may encourage you to think about what you need from a settlement, rather than what you want.

Voluntary mediation can be preferable to litigation in many ways.  If it results in a settlement, it typically costs less, takes less time to complete (maybe only involving a single session), and protects the parties’ confidentiality.  In addition, studies have shown that agreements reached in mediation have a higher compliance rate than other settlements, because mediated agreements are decided upon by all parties involved in the dispute, rather having a “win or lose” outcome  imposed by a judge.  However, by pursuing mediation, you are not giving up your legal rights.  If an agreement is not reached at the mediation, any party to the dispute can still have the dispute adjudicated by the court.

Angela Grau is a litigation attorney at Davis, Agnor, Rapaport & Skalny, LLC.  For questions about this article or other questions regarding estate and trust litigation matters contact Angela.