3 Things to Know Before Your Mediation

As a mediator, I’m pleased to start this blog with a post about mediation.

A lot of clients (and let’s be honest, attorneys) have anxiety and misconceptions about mediation. This can be problematic since most contracts have alternative dispute resolution clauses and absent such a provision, a judge is likely to require mediation before you ever set foot in a court anyway.

Here are three things to know before your mediation:

1) The Mediator is Not on Your Side

To be clear, this does not mean that the mediator is against you either. The mediator is a neutral third party whose job it is to hear both sides and collaborate with participants to find a resolution that is palatable for everyone.

I recently received a call from a prospective client wanting to hire a mediator because they couldn’t afford an attorney to represent them. I had to explain the role of the mediator in detail. Mediators do not file documents on your behalf or advocate for you. They are facilitators.

Mediation solutions can be creative, and this is largely because the mediator is not adversarial to either party.

2) Research Your Mediator

Every mediator is different.

The price of a half or full day of mediation also varies by mediator. A half day of mediation just in the Dallas/Fort Worth area can cost up to $500 per party.

I’ve recently learned that some judges encourage parties to choose their own mediator rather than have one appointed from the court’s approved list. The theory is that this will allow the parties to separately research and choose a mediator with a background in the issues at hand.

For the pro se party or attorney who has never attended a mediation before, these public court appointed mediator lists can be extremely helpful. The list can be a great starting point to begin finding the right mediator for your case.

3) Always Submit a Mediation Statement

A mediation statement is essentially a mission statement to the mediator. It puts forth the party’s perspective of events, the relevant areas of fact and law at issue, and identifies all parties. This is the mediator’s first impression of the parties.

Yet, most attorneys never submit one.

Individuals representing themselves are even less likely to submit a mediation statement and this may be because they are unsure of the content.

Regardless of format, every party should submit a mediation statement as early as possible before the mediation date. While each party will be given an opportunity to make an oral statement during the mediation, it is unlikely you will get all the information out clearly without interruption from the other party.

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