You’ve probably heard of the word mediation. Heck you’ve probably even have been a mediator yourself between your friends. But, have you ever been involved in a law suit and required to go to mediation? I hadn’t until yesterday. It was an experience. Since the lawsuit is still pending, I won’t use any real facts or figures, but I think I can give you the general idea of mediation.
The parties involved: The Plaintiff, The Defendant, The Lawyers, and The Mediator
This is the individual or party who has brought on the lawsuit. You were the plaintiff, if at one point, you yelled at your mom, “MOM! He hit me!” We may grow up, but we don’t stop pointing the finger and placing blame.
That is where the lawsuit comes into play, and then the lawyers. We all love lawyers (I actually do like a couple). Unfortunately, they are a necessary evil in the sue happy culture we live in today. The lawsuit, states who was harmed and who is at fault and the damages sought.
“No I didn’t, she’s lying!” – The defendant. If it were all this easy. Well maybe to the plaintiff and defendant it is. Each one is 100% certain the other is either at fault or lying. That is where the lawyers come in and start digging. Dig, dig, dig. $$$$$. Well, who was truly at fault and to what extent.
At some point, those $$$$ signs become an amount that the plaintiff feels his/her/their case is worth which is presented to the defendant. If the defendant and his/her/their counsel feel this is acceptable, shoot, lawsuit done, we can all go home. But it ain’t ever that easy.
The plaintiff’s $$$$ signs might be the defendants $ sign.
Because “He hit me” and “No I didn’t, she’s lying” is far too simple language, legal jargon and experts in arguing were created. Lawyers. Each one fighting for or defending their client to the best of their ability. They represent their client and do most of the talking and counseling, but they are their for their clients best interest.
When the case is on the verge of trial and the two sides cannot come to an agreement, mediation is often the step before trial. Mediation gets the two parties involved in the lawsuit together on the same day in the same building (hopefully), but in different rooms to try and hash out a resolution.
The mediator is a prior judge, who has a vast history on how trials have proceeded and hopefully can help both sides see what the reality is of his/her/their case. I really liked our mediator, but I think that is what makes a good mediator, to a certain extent, because if I like him, maybe I’d be more inclined to agree to his/her terms.
When you get into the building and walk into the mediation offices, you are greeted with a bundle of baked goods, drinks and the lunch menu. Load up, it’s going to be a long day.
The defendant and plaintiff are going to be ushered to their respective office suites (at least two doors apart from each other because we don’t want the other to hear our plotting, right?). The lawyers, will at this point hopefully have briefed you some what on what to expect and how long it is going to take and how much free time you’re going to have. You’re going to have a lot of free time. I forgot my laptop and my phone was half charged, it’s gonna be a long day.
As the process begins, the mediator will come in and introduce him or herself. He or she will have been given ALL of the documents and will have completely briefed themselves prior on the case and the details. They know what the case is worth and they are here to get the two sides to agree, if all goes to plan.
For the next 5 hours a game is going to be played. The game… is called Ping Pong of Crazy, Stupid Numbers. Maybe, if you’re lucky the numbers won’t so stupid and you will get to a resolution. We. Did. Not. The 5 hours was a waste of time, as both sides were so far off, after the 3rd counter, we should have left. Yes… 3rd counter. Third counter of 6.
I’m in real estate and sure there have been some deals where I have countered a total of 3 times, but never 6. I get the point. We won’t agree on price and terms.
Ultimately, each side feels they are completely right, but maybe to protect the uncertainty of trial are willing to reach an acceptable amount they could live with. The plaintiff is trying to get as much as they can and the defendant is trying to give away as little as they can. But where is the middle ground and can you reach it?
Mediation was an experience. I couldn’t and still can’t believe I spent 5 hours to get nowhere, but that is part of the game and now we are headed for trial.