negligence

Litigation is an expensive endeavor, and with all of the costs and risks, there is still a chance that a litigant will lose at trial. Even if the jury finds in the party’s favor, the jury may not award the party a substantial damage award. If the jury does find in the party’s favor and awards the party a substantial damage award, the award can be overturned on appeal. If the litigant loses the case, the litigant may be ordered to pay the winning opponent’s miscellaneous expenses and costs, which can be significant. Additionally, the litigation process generally takes two (2) to four (4) years. Parties can spend months preparing for trial, only to have trial pushed back to another date the week prior.  The entire litigation process is extremely stressful to the party and the longer the time to get to trial, the longer the party is subjected to stress and anxiety relating to the case as a result.  Often, parties to a lawsuit do not understand the litigation process or what is involved in going through trial until they have become too entrenched in the process.  The New Jersey Court system offers an alternative dispute resolution process in many types of litigation, including personal injury, employment law and sexual harassment cases. Mediation is a chance for parties to resolve their case before a neutral third party.  It is a lower risk and lower cost opportunity to settle a case and allows the parties to move on with their lives.

What is Mediation?

With the risks and costs associated with trial, and the low likelihood of success and a substantial award, many parties prefer to mediate cases. Mediation can occur because the parties have voluntarily agreed to participate in mediation or have been ordered by the court.  Mediation is an out-of-court process where the parties to litigation go before a neutral third-party to attempt to resolve their claims. The mediator has no bias against any of the parties or their positions. The mediator is the facilitator who assists the parties in reaching an agreement that is acceptable to them. The formal procedures found in court proceedings are not present in mediation. There are no rules of evidence or set procedures for the presentation of facts or positions. This absence of formality provides for open discussion of the issues and allows the parties free exchange of ideas. Mediation is more cost-effective and efficient than the process of preparing for and attending trial, and there is an incentive for both parties to mediate.

What Can a Party to Mediation Expect?

Depending on the mediator, the parties may start in a joint-session, where the mediator talks to all parties about the process of mediation and what the goals of mediation are. Sometimes the mediator will ask the representation for each party to make a short statement of their client’s position. After this initial joint-session, the parties will break out into separate rooms for the majority of the mediation as the mediator travels back and forth between the parties. The parties may come together again at the end of mediation if the matter is resolved, to sign a mediation agreement and go through the terms of the agreement.

Another alternative, often requested in sensitive employment disputes or controversial will contests, is to keep the parties separate for nearly the entire mediation. In this version, the mediator will meet with each party separately at the beginning of the day, and then continue to travel back and forth between the parties until the parties reach an agreement or impasse. If the parties reach an agreement, the mediator will ask the parties to meet in a joint-session to discuss the terms of the agreement and sign the agreement.

Regardless of the method of mediation, the mediator will sometimes request to meet with the attorneys separately. In this situation, the mediator wishes to speak with the attorneys privately about the legal issues in the case. This can happen multiple times throughout the day, as the mediator travels back and forth between the parties. Sometimes, the mediator will have the attorneys for both parties meet together, and request the parties stay separated. This allows the attorneys to discuss their claims freely, without putting the parties in an uncomfortable position of having to see their adversary.

What Is the Litigant’s Role?

The litigant plays a crucial role in the mediation process. While the mediator does not always request to speak with the litigant, the litigant should be prepared regardless. To that end, there are a number of things the litigant should do to prepare for mediation. The following is a brief list of important things to remember at mediation:

• Know your case: The litigant should always read and fully familiarize his or herself with the mediation statement. This refreshes the litigant’s memory as to the facts in the matter, and helps the litigant understand the legal basis of his or her claims.
• Discuss how you feel: The litigant should be specifically prepared to discuss with the mediator how the events underlying the claims have affected his or her life to date. The litigant should be prepared to discuss any injury, counseling, treatment, or medication the litigant is currently receiving, as well as employment status and efforts to find employment in employment litigation The litigant should be able to specify his or her economic damages and identify and expand upon specific symptoms associated with his or her injury in personal injury matters.
• Dress: While the litigant is not going to court, the litigant should still dress as if he or she is. Generally, the more conservative the clothing, the better. A suit and a tie for men, or dress pants and a sports jacket with a tie are acceptable. A pants suit and conservative blouse or a skirt, blouse and sweater are acceptable for women. You do not want to distract the mediator from the case at hand with your appearance.

Middletown business attorneys at McOmber McOmber & Luber, P.C. have years of experience in mediation and understand the value of cases. The lawyers at McOmber McOmber & Luber, P.C. offices conveniently serving Middletown, NJ and Evesham, NJ work diligently to obtain a reasonable settlement for the matter at hand. Numerous factors contribute to the amount of settlement, including but not limited to, length of employment, salary, injury, length of injury, costs expended to obtain treatment for injury, monies expanded to bring a suit, types of case, length of case, and the financial position of the adversary.  The attorneys at McOmber McOmber & Luber, P.C. can guide a client through the difficult and complex mediation process.  Contact our offices online at 732-842-6500 today.