Mediation: The Basics

Myrtle Beach Lawyer on Mediation

Myrle Beach LawyerIf you file a lawsuit in South Carolina you will very likely be mandated to go through some type of alternative dispute resolution (“ADR”) before the Court allows your case to proceed to trial.  Most counties in South Carolina are mandatory ADR counties, meaning that you must submit your case to arbitration or mediation before a trial date will be set.  The difference between arbitration and mediation is outside the scope of this post, but in basic terms arbitration is usually binding on all parties, and mediation is not.  Most cases are mediated.

So, what is it and how does it work?  Mediation is a formal means by which a neutral third party (the Mediator) will hear both sides of the lawsuit and try and negotiate a settlement between the parties.  The mediator will not take a side, but will give his first impressions to each party and attempt to bring about a settlement in the case.  It is often very useful and will allow both the plaintiff and defendant to see what the holes in their case may be at trial.  It will also give some incentive to settle amicably before trial.  It is usually the first time the parties to a lawsuit can sit together in a room to discuss the merits of the case and defenses therein.

At the beginning of mediation the mediator will have all parties and their lawyers in a room to give the opening statements.  Your Myrtle Beach lawyer will put forth the facts of your case and start to frame your arguments and facts that may come up at trial.  Once everyone has had an opportunity to speak, the parties are separated and the mediator will begin going back and forth between the parties.  The mediator will tell you what he thinks the weaknesses of your case may be, but will also advise you of the strengths.  He will go back with any offers to settle and information you wish for him to provide to your opponent; however, he will also refrain from giving out information you wish to remain confidential at this time, such as what your bottom line settlement number is.  He will attempt to negotiate a settlement between both parties and if unable to do so, will declare that the parties are at an impasse and must proceed to trial.

Accident Lawsuit Myrtle BeachExpect that in opening you will likely hear statements made by your opponent that are in disagreement with your case and your point of view.  If you all agreed on the facts and circumstances, you probably would not have had to file suit.  This is the first chance you will have to hear them frame the case from their perspective and tell you why that should not be held responsible for your claims.  It is the defense attorney’s job to challenge the facts and value of your case. Be careful not to get upset and refrain form any interruptions or outbursts.

You will likely be very far apart at the beginning.  In fact, that’s what mediation is for.  You may be asking for the moon, but defense counsel is only prepared to offer you pennies on the dollar of what you’re asking.  The truth is, your case’s value is probably somewhere between the two figures.  The mediator’s job is to arrive at this middle ground.  This is often a lengthy process and can take several hours or even days.  Be prepared to set aside at least one day to devote to mediation.  The more complex the matter, the more time it will require.  Also, expect to have to compromise.  It’s an old legal adage that if both parties don’t walk away at least a little bit upset at what they have to give up, the mediation was not successful.  The whole purpose is to resolve the conflict and settle the case.  This often requires both sides to be prepared to compromise to a certain extent.

All that being said, mediation is an excellent tool for resolving conflicts and will often times get you the settlement you deserve without the risk of going to trial and losing your case.

The Law Office of Dennis J. DiSabato, Jr., LLC
3888 Renee Drive, Suite 201
Myrtle Beach, SC 29579
843-903-1212

 

 

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