Mediation is an informal conference wherein two or more parties to a dispute pay a third party, typically a retired judge or an attorney who specializes in a specific area of law, to assist them with resolving the dispute. The attorneys are typically responsible for selecting and agreeing upon a mediator who they believe has the necessary knowledge and experience to understand and resolve the claims. Prior to the mediation, the attorneys typically prepare and send the mediator a Statement of the Case or Mediation Brief, which is a persuasive document intended to sway the mediator in their client’s favor. Notwithstanding, mediators are supposed to be neutral, meaning not biased toward one party over the other. However, a good mediator will typically educate both sides on the weakness and risks of their respective claims and defenses. Most experienced mediators will proclaim that a mediation was a success if the dispute resolved and all parties walked away unhappy; which implies that the parties compromised and neither got exactly what they wanted.

Most in-person mediations begin and end with the parties divided into two or more rooms, sometimes never actually seeing one another, with the mediator going back and forth between the rooms until the case is settled or reaches an impasse. It is not atypical for an initial settlement offer to be very low, with the final last offer of the day being 10 times higher. Most mediations start with a discussion of the facts and law and by about halfway through the process, the focus tends to shift almost entirely to back-and-forth offers and demands.

Even when a dispute does not resolve at mediation, the process can still be valuable because: (1) new facts are typically exchanged; (2) new legal arguments are heard; (3) the mediator likely provided an opinion about the strengths and weaknesses of the claims and defenses; and (4) negotiations tend to continue even after the mediation comes to a formal end. In fact, it is not uncommon for larger or complex cases to mediate 2 or 3 times before trial or a final hearing. Additionally, typically with the parties’ approval, the mediator will issue a “Mediator’s Proposal” the day following the mediation wherein the mediator suggests an amount for which he/she believes the claim should be resolved. The parties typically have 5 – 7 days to anonymously respond to the mediator by accepting or rejecting the offer. If both sides accept, then the dispute is settled.

Qualified mediators typically charge anywhere from $1,500 – $6,000 for a half-day mediation and $3,000.00 – $12,000 or more for a full-day session. When a party’s attorneys’ fees for preparation and attendance are considered along with the mediator’s fees, mediation typically costs a party $7,500.00 – $10,000.00 or more depending upon the complexity of the case.