A Quick Guide to Mediation
If you are scheduled to attend mediation in the near future, this note explains what mediation is, how it works, and why most litigants ultimately choose to settle rather than proceed all the way to trial.
I. What Mediation Is
Mediation is a private, voluntary meeting in which the parties try to resolve their lawsuit with the help of a neutral facilitator called the mediator. The mediator is not a judge and has no power to decide the case. Instead, the mediator helps each side see the strengths and weaknesses of its position and guides the negotiations toward common ground.
II. Key Features to Keep in Mind
• You stay in control. A settlement occurs only if all parties agree to the terms.
• Confidentiality is strict. Under California Evidence Code sections 1115-1129, anything said or offered in mediation generally cannot be revealed in court. This allows everyone to speak freely without fear that a candid comment will be used against them later.
• Informality reduces stress. Mediation typically occurs in a conference room, rather than a courtroom. No witnesses are sworn, no cross-examination occurs, and there is often coffee instead of tension.
• Rapid resolution is possible. Many disputes that would otherwise drag on for years end in a single day of mediation.
III. How the Day Typically Unfolds
IV. Why Settlement Usually Beats Trial
• Cost savings – Trials require extensive attorney hours, expert witnesses, depositions, subpoenas, travel, and courtroom preparation. Mediation costs a fraction of that.
• Time savings – California civil trials are often set a year or more into the future, and appeals can add several more. Settlement delivers closure now.
• Certainty – Jury verdicts are unpredictable; even “slam-dunk” cases can lose, and weak cases sometimes win. Settlement lets you lock in a known result.
• Privacy – Courtrooms are public. Settlements can include nondisclosure provisions that keep sensitive information out of the public record.
• Reduced stress – Litigation is emotionally taxing. Settlement spares you the anxiety of depositions, cross-examination, and media attention.
• Creative solutions – A settlement can include payment plans, apologies, future business deals, or any other terms the parties value—remedies a court has no power to order.
• Relationship preservation – In business or family disputes, an amicable resolution can allow the parties to continue working together or part on civil terms.
V. The Hidden Burdens of Trial
• Escalating expert and attorney fees.
• Months of document production and depositions.
• Public exposure of finances, medical history, or trade secrets.
• Delays in collecting even a favorable judgment.
• Emotional toll on work, health, and family life.
VI. How to Approach Mediation Wisely
• Know your “BATNA.” Your Best Alternative To a Negotiated Agreement is the likely outcome (in time, money, and stress) if you walk away and go to trial.
• Arrive prepared yet flexible. Solid documentation builds credibility; flexibility signals good faith.
• Keep emotion in check. Focus on interests—solving the problem—not on punishing the other side.
• Think in ranges. Offering a realistic range rather than a single number leaves room to bargain.
• Look for non-monetary value. Tax treatment, timing of payments, confidentiality, and future cooperation can bridge a monetary gap.
• Listen to the mediator. Mediators draw on hundreds of cases and know how juries and judges often react.
VII. Frequently Asked Questions
• Is the mediator like a judge? No. The mediator cannot impose a decision; only the parties can.
• Can what I say be used against me? Typically no. Mediation communications are privileged.
• Do I have to settle? Never. You retain full litigation rights if no agreement is reached.
• Will the judge know if we refused an offer? No. The mediator reports only whether the case settled.
• What if new facts turn up later? Settlement agreements usually include a release of “known and unknown” claims. You and your attorney can discuss any carve-outs you might need.
VIII. Possible Next Steps
If you are scheduled to attend mediation in the near future, this note explains what mediation is, how it works, and why most litigants ultimately choose to settle rather than proceed all the way to trial.
I. What Mediation Is
Mediation is a private, voluntary meeting in which the parties try to resolve their lawsuit with the help of a neutral facilitator called the mediator. The mediator is not a judge and has no power to decide the case. Instead, the mediator helps each side see the strengths and weaknesses of its position and guides the negotiations toward common ground.
II. Key Features to Keep in Mind
• You stay in control. A settlement occurs only if all parties agree to the terms.
• Confidentiality is strict. Under California Evidence Code sections 1115-1129, anything said or offered in mediation generally cannot be revealed in court. This allows everyone to speak freely without fear that a candid comment will be used against them later.
• Informality reduces stress. Mediation typically occurs in a conference room, rather than a courtroom. No witnesses are sworn, no cross-examination occurs, and there is often coffee instead of tension.
• Rapid resolution is possible. Many disputes that would otherwise drag on for years end in a single day of mediation.
III. How the Day Typically Unfolds
- Preparation – Before the session, the parties exchange concise “mediation briefs” summarizing the facts, legal claims, and damages. You might also assemble the key documents (contracts, invoices, photos, medical bills, etc.) so answers are readily available.
- Opening remarks – Some mediators begin with everyone together for introductions and ground rules; others skip straight to private meetings (called “caucuses”) if feelings run high.
- Private caucuses – The mediator shuttles between separate rooms, asking frank questions and carrying offers and counter-offers back and forth. Anything you share can remain confidential unless you authorize the mediator to disclose it.
- Negotiation and “reality checks” – As the day progresses, the mediator will test each side’s expectations, point out litigation risks, and sometimes float a “mediator’s proposal” as a last-ditch bridge between positions.
- Documenting the deal – If the parties reach an agreement, a brief “Memorandum of Settlement” is signed that day. Once signed, it is enforceable like any contract.
- If no settlement – The parties simply resume the normal litigation schedule—discovery, motions, and, eventually, trial. All discussions that took place in mediation remain privileged.
IV. Why Settlement Usually Beats Trial
• Cost savings – Trials require extensive attorney hours, expert witnesses, depositions, subpoenas, travel, and courtroom preparation. Mediation costs a fraction of that.
• Time savings – California civil trials are often set a year or more into the future, and appeals can add several more. Settlement delivers closure now.
• Certainty – Jury verdicts are unpredictable; even “slam-dunk” cases can lose, and weak cases sometimes win. Settlement lets you lock in a known result.
• Privacy – Courtrooms are public. Settlements can include nondisclosure provisions that keep sensitive information out of the public record.
• Reduced stress – Litigation is emotionally taxing. Settlement spares you the anxiety of depositions, cross-examination, and media attention.
• Creative solutions – A settlement can include payment plans, apologies, future business deals, or any other terms the parties value—remedies a court has no power to order.
• Relationship preservation – In business or family disputes, an amicable resolution can allow the parties to continue working together or part on civil terms.
V. The Hidden Burdens of Trial
• Escalating expert and attorney fees.
• Months of document production and depositions.
• Public exposure of finances, medical history, or trade secrets.
• Delays in collecting even a favorable judgment.
• Emotional toll on work, health, and family life.
VI. How to Approach Mediation Wisely
• Know your “BATNA.” Your Best Alternative To a Negotiated Agreement is the likely outcome (in time, money, and stress) if you walk away and go to trial.
• Arrive prepared yet flexible. Solid documentation builds credibility; flexibility signals good faith.
• Keep emotion in check. Focus on interests—solving the problem—not on punishing the other side.
• Think in ranges. Offering a realistic range rather than a single number leaves room to bargain.
• Look for non-monetary value. Tax treatment, timing of payments, confidentiality, and future cooperation can bridge a monetary gap.
• Listen to the mediator. Mediators draw on hundreds of cases and know how juries and judges often react.
VII. Frequently Asked Questions
• Is the mediator like a judge? No. The mediator cannot impose a decision; only the parties can.
• Can what I say be used against me? Typically no. Mediation communications are privileged.
• Do I have to settle? Never. You retain full litigation rights if no agreement is reached.
• Will the judge know if we refused an offer? No. The mediator reports only whether the case settled.
• What if new facts turn up later? Settlement agreements usually include a release of “known and unknown” claims. You and your attorney can discuss any carve-outs you might need.
VIII. Possible Next Steps
- Please read this note carefully and jot down any questions you may have.
- Schedule a brief call with your attorney before the mediation to set realistic goals and a bottom-line settlement range.
- Gather all important documents—contracts, invoices, photos, medical records, or any other evidence —and bring them to the session.