Mediation – Resolution Without Trial
In the New Jersey state court system, the court will require the parties to participate in Mediation at some point after the lawsuit is filed and answered, but before the end of the Discovery stage.
At any time after the lawsuit starts, the parties can discuss the matter, usually through their lawyers, in an effort to reach a settlement.
The court recognizes that sometimes a non-interested neutral third-party may help each side in crafting a settlement that the parties alone cannot seem to accomplish.
For this purpose, the court maintains a list of lawyers and other professionals who have qualified to be mediators. The court will appoint one of these persons to act as a mediator in the lawsuit. The attorneys on both sides will confer with the mediator and schedule a date for mediation that is convenient for all parties.
The mediation does not typically take place in the courthouse, but instead in the offices of the mediator, or the offices of one of the attorneys in the case. The parties attempt to choose a place that is most convenient to all.
Before the date of the mediation, the attorneys prepare their client’s “Mediation Statement.” In this statement, the attorneys summarize the facts, cite to the statutes and legal precedents that their client’s case is based on, and point out the strengths and weaknesses of the case from their client’s perspective, and from the adversary’s perspective. The mediation statements are submitted to the mediator only – the other side does not get a copy of the adversary’s mediation statement.
On the day of mediation, the parties meet and the mediator has everyone in the same conference room. The mediator explains the mediation process which typically proceeds as follows:
- The mediator will separate the group, putting the attorney and his or her client in one room, and the other attorney and his or her client in a separate room.
- The mediator will meet with one party to get that party’s version of the facts as well as a sense as to what type of settlement terms would be acceptable to that party.
- The mediator will go through the same process with the other attorney and his or her client.
- The mediator will keep all information provided in these sessions confidential and will only disclose the information to the adverse party in the mediator is given permission to do so by the party providing the information.
- The information will go back and forth between rooms in an effort to find common ground for reaching a settlement.
- The mediator will provide his or her opinion as to the strength of the party’s case, but will not make a ruling or render any binding decisions.
- If the parties cannot reach a settlement on terms acceptable to all, the mediation session will end.
- If a settlement is reached, the parties will sign a document setting forth the term of the settlement.
If a settlement is reached, after each party has performed what is required by the settlement, the attorneys will file papers with the court asking that the case be dismissed.
If the mediation session lasts more than one hour, the mediator will be entitled to be paid fees based on the time spent by the mediator at the regular hourly rate of the mediator (less credit for one free hour). Either party may terminate the mediation before the nd of the first hour in order to avoid payment of any fees.
Mediation is an excellent and cost-saving forum by which parties can settle case and end lawsuits.
If the case does not resolve through Mediation or through the efforts of the parties and their attorneys, the parties will complete Discover. After the end of the Discovery Stage, the parties may be required to participate in Non-Binding Arbitration. If the matter does not resolve between and among the parties, after the completion of Non-Binding Arbitration, the court schedules the matter for Trial.
Look for other blog posts on the topics of How to Start a Lawsuit, the Discovery Stage, Expert Witnesses, Non-Binding Arbitration and the Trial.
This article is intended as general information and not as legal advice. If you are considering starting a lawsuit, contact an attorney at Maselli Warren, P.C. to schedule a consultation.