The Mediation Process
Mediation has evolved to become an essential component of resolving civil litigation both in State and Federal Court. The Courts, due to the sheer volume of cases, are not set up to provide the parties a forum in which to spend many hours, or as in some cases, several days helping them to "settle" their cases. Experienced lawyers recognize that mediation is the best way in which they can spend the hours necessary to resolve serious and significant cases and to save substantial time and expense through settlement rather through trial. The Federal Court for the Western District of New York has embraced mediation as an effective tool to help dispose of civil cases on its docket through its Mediation Program implemented several years ago. In many circumstances, mediation can occur prior to litigation or just shortly after litigation has commenced. In many cases, the parties may be well aware of the nature and extent of disputed issues and the seeds for settlement can be planted through mediation rather than discovery to resolve case.
Frequently, mediation occurs during the pendency of a summary judgment motion or other dispositive motions. While the motion is pending, each side can take a look at their positions and decide that mediation might help settle the matter rather than await the outcome of the actual Court decision. Many mediations occur while appeals are pending. Mediation has the benefits of the entire process being confidential and party driven.
After preliminary discussions concerning scheduling, typically the mediation occurs in the Law Offices of Douglas Coppola which has space to hold caucuses for up to 5 parties. Doug has also been retained to travel out of Buffalo to mediate disputes in other jurisdictions.
Pre-Mediation
- At least one week prior to the mediation, the parties submit memorandums concerning their legal positions in the case including relevant deposition testimonies, medical reports, expert disclosure and any caselaw. The submission can be confidential or disclosed to the parties as determined by the parties.
- On the day of mediation, usually the parties involved in the claim and their counsel are present. The persons with the authority to pay dollars, whether it be an insurance adjuster, corporate officer, or other necessary individual, are also requested to be present. There is a substantially higher probability of settlement when the people with the authority to pay the settlement dollars are physically present to help reach resolution and be invested in the process.
- The session will begin with a joint session which includes all parties and counsel to discuss the issues to be resolved in the mediation on a face to face basis with the mediator facilitating the discussion.
- After the joint session, caucuses with the individual parties are then held throughout the day in separate spaces within the offices.
The general rule is that Doug can only caucus with one side at a time and there are no arbitrary limits on the time to be spend with any particular party. No discussions are rushed and it is important that Doug understand what each party's position is in order to bring the parties to resolution. Each mediation is different and there are no exact times that are spent with one or more parties as we work towards case resolution.
Given the fact that there is the downtime which occurs while the private caucuses are ongoing with the other parties, it is recommend that the attorneys and their parties bring other reading or work materials to occupy themselves during the time Doug spends with the other groups.
It is sometimes necessary to schedule another formal mediation session or, at minimum, follow-up telephone calls between Doug and the parties to reach agreement.
The mediation process is privileged and confidential and what is disclosed to the mediator by the parties regarding their positions will not be discussed with the Court. Statements, admissions or documents prepared for disclosure at the mediation will not be entered into evidence of later proceedings. No party shall subpeona or otherwise call the mediator to testify at later proceedings.