What do you do when you want to resolve a disputed issue, allow both sides to be heard, avoid a lengthy and costly Trial, and, hopefully, have both parties be able to live with the resolution. Mediation is one possibility.
The main goal of mediation (a form of Alternative Dispute Resolution or ADR) is to come to an agreement between the Parties to a dispute rather than having a solution forced upon one or more of the parties through Arbitration or Trial. With this in mind, Parties should come to the table willing to give up some demands in order to have the issue resolved.
I am personally involved in a situation with my neighbors. One of the neighbors refused to participate in the Mediation (even though it was supposed to have been required by the City of Las Vegas) on the basis that there had been some alleged hostility between the parties, that there were too many parties involved to be able to come to a resolution, and that we had different philosophies (by which he meant we were not in agreement on the issue).
NO form of litigation is necessary unless there is a difference of opinions (a.k.a. a dispute). I can’t imagine anyone would want to be involved in litigation if there was no dispute – unless of course there is an ulterior motive and/or the person is just nuts. Under this neighbor’s philosophy, all mediations and negotiations (such as the ones that ended the cold war) are useless since the parties are not in agreement. No, almost any issue can be resolved with a good mediator and willing parties.
The allegations that there are too many parties involved is also fallacious. If this was the case, there would be no negotiations or mediations where several Parties have to split the pie. I see situations such as this in my personal injury practice where there is a tragic injury (or injuries) a limited amount of money available from the party who caused the injuries.
In one of my cases, three teenagers injured by another in an auto accident. There was only the Nevada minimum liability coverage of $30,000.00 available to compensate the three injured kids for their medical bills and pain and suffering. One of the boys had relatively minor injuries; one had a broken hip; and my client was left with paralysis and kidney injuries (his hospital bill alone approached the $200,000.00 mark.) It took a while, but we were able to divide up the policy limits through negotiation. Once I knew the amount I had available (which included Under Insured Motorist Coverage for my client), I had to go to my client’s medical providers and insurer to work out a deal on distributing the proceeds between the client, the providers, the insurer and myself. Both of these negotiations were able to be done because everyone involved in both steps understood they would have to give a little in order to avoid costly litigation that, in the end, would not benefit any of the parties.
While the above case was resolved by negotiations between the Parties, it could very well have been resolved through one or more Mediations. Typically, the Parties would have agreed to a Mediator or Mediators or a process to choosing the Mediator(s). Well informed mediators are able to perform their jobs more effectively and efficiently. They will require a brief prior to the mediation along with supporting documents. Typical information put into a brief includes:
1. The Party’s position on the issue(s);
2. The Party’s strongest arguments;
3. The Opposing Party’s strongest arguments;
4. The Party’s initial demand for settlement; and
5. The Party’s bottom line for settlement.
This information allows the negotiator to understand how the Parties feel about the issues, how flexible they are, how best to communicate with the Parties, and whether or not the Parties are likely to come to a resolution.
During the Mediation, the Mediator will usually have a short meeting with all of the Parties together to try and get the ensure that she understands the case as a whole and to try and get the Mediation started on a good note. Next, she will break the Parties into groups. Sometimes more than one party would be considered as a whole. This is true of my personal case where neighbors with similar positions would be considered as a single group – at least to start.
Once the Parties are separated, the Mediator can talk to each group separately. She will discuss the good and bad points of their position, the benefits of settling through mediation rather than going through trial, and what the party is looking for to settle the case. The Mediator will convey offers back and forth between the Parties. Sometimes the Mediator will, with the permission of Party A, disclose information to Party B to demonstrate Party A’s strength in the case that may help Party B change its position.
The mediator will make as many attempts to settle the case as she feels are necessary and worthwhile. In many occasions, the case settles at Mediation, an agreement is written and signed by the Mediator and the Parties and the case is done so long as everyone complies with the Agreement. If the case does not resolve it will enter or continue with another form of litigation.
For more information on Insurance Coverage in Nevada go to Allen A. Cap, Esq.’s Blog at Vegas Personal Injury Law.
