John Barker brings to the mediations he conducts experience, creativity and dedication to getting a resolution to the dispute. He has conducted well over 2500 mediations that resulted in settlement of the disputes. General descriptions of recent mediations can be found at the Bio page on this website. Mediations are conducted in a relaxed atmosphere, recognizing that mediation is serious business, but also recognizing that the client needs to make an important decision without undue or artificial pressure from the mediator. See the information below for an in-depth explanation of the mediation process.
What is mediation?
Mediation is a process of negotiation through a neutral person by which the parties resolve a dispute. The mediator's only objective is helping the parties find an acceptable resolution. The mediator does not decide who is more right or wrong in their views or dictate the settlement to the parties.
Is a mediated settlement 'binding' on the parties? The parties' agreement reached in mediation is binding on them. That is the objective of the mediation, to reach a binding, but agreed, solution to the problem.
Do I have to be in the same room with the other side during the mediation? No, and joint meetings of the parties are held only if all participants agree that it is necessary to further the goal of the mediation.
Do I have to settle at the mediation? You don't have to settle at mediation. You will be presented with settlement opportunities, but one that is not within the boundaries of what is reasonable, considering the risks of going to trial, should be rejected. Yet, in deciding whether to reject a settlement opportunity in favor of trial, keep in mind the many uncertainties of putting the decision on the outcome of the dispute in the hands of strangers, judges and jurors. One of the least well-known, but most financially devastating risks of heading for the courtroom is highlihted in a fine article written by Portland lawyer Brooks Cooper. In the article you'll find additional incentive to work hard on settlement, whether in mediation or outside mediation. Read this article by clicking on this link: http://www.osbar.org/publications/bulletin/14febmar/parting.html.
Neither the mediator nor your attorney should put pressure on you to settle. On the other hand, your lawyer is the best source of guidance as to what is "reasonable" in this setting.
Listen to your lawyer and, consider any observations the mediator might make, but remember that the mediator is working to move both parties from their positions coming into the mediation to a position where they can agree on a settlement.
There will likely be a time at the mediation when you are considering what the mediator believes is the other side's final offer, or very near to it. At that point, you want to ask your lawyer to help evaluate that offer, generally using the following guidelines: if you are the plaintiff or claimant, you will want to hear from your lawyer what he or she believes are the chances of a significantly greater net recovery at trial after deducting the cost of going through trial and taking into the account the chances of a lesser or no recovery. If the lawyer tells you that your chances are very good that you'll get a much greater net recovery, after deducting the costs associated with a trial, this will be a factor that weighs in favor of declining that offer. You should also take into account the waiting time for trial and the impact the wait will have on you and your family.
If you are the defendant or paying party, you'll want to hear the same information from your attorney about the chances of getting a defense verdict or a far better result at trial. You will also take into account the cost of getting through the trial, as well as the impact of the wait for trial.
Above all, all parties should listen closely to what their attorney advises, just as you would listen closely to a doctor's or accountant's advice on decisions concerning your health and finances. The mediator's comments and observations can be useful, and are meant to be so, but the final decision is yours. Giving great weight to your attorney's advice is wise.
What is the typical sequence of events of mediation?
- Before the mediation
Generally, the parties' attorneys submit to the mediator written materials describing the factual background, legal issues, some analysis of strengths and weaknesses of the parties' positions, and the history of negotiations.
You will discuss with your lawyer what to expect at the mediation. The lawyer will help you develop a general strategy for getting an acceptable settlement. It is important that you and your lawyer maintain flexibility in thinking about what an acceptable settlement might be.
Come to the mediation ready to hear, through the mediator, what the other side intends to present to the jury at trial and think about how a stranger (in this case the stranger is a juror) might react to such testimony.
Do not form hopes or expectations about a settlement based on financial needs, such as paying off credit card debt, buying a new car, paying for your child's schooling and the like. From the plaintiff or claimant's side, you are selling an asset - - the release you will give the defendant for payment of an agreed "price." Just as you can expect to sell your home at a market price, your claim has a 'market' of sorts as reflected in other settlements and jury verdicts for similar claims. If you set the price unrealistically high for the claim, the other side isn't going to "buy" the release for that sum of money. Both sides must think in terms of settlements for other like cases (your attorney is the best source of this information) and jury verdicts in such cases (the mediator usually can help you with this, as well).
- At the mediation
The mediator will meet with the plaintiff first, generally for a half hour or so, to get a more complete understanding of the basis for the claims. The mediator will then meet with the defendant for the same purpose. During these meetings, the mediator will probe to find whether each party recognizes the risks involved in their own case. It is common that a party has been focused on the strengths of their case and hasn’t thought through the strengths that a jury might see in the case the other side will present if the dispute doesn’t settle.
A willingness to recognize the risk that the jury might see some merit in the other side’s case is a major step toward finding a resolution that both sides can accept as preferable to having their dispute decided for them in court.
What is expected of the mediator at the mediation? The mediator must become informed about the dispute to the extent necessary to be helpful in working toward a solution. The mediator's responsibility is to keep the parties moving forward, to offer insights on how the parties' evidence might be seen by a judge and jury, and to be dedicated to the effort to find a solution. It is not the mediator's role to attempt to impose a solution on the parties. The mediator should be the last to declare the effort hopeless. Experience has proven time and again that persistence by the mediator and patience by the parties lead to settlements of those 'hopeless' cases.
What is expected of the lawyers at the mediation? Dedication to the goal of a successful mediation is expected of the lawyers. They must advise their clients on the wisdom of proposals made during the mediation, the risks of rejecting them, the strategy for counter-proposals and the like.
Mediation is not a time for the lawyer, the client or the mediator to dwell unduly on what has happened that has led to the claim, but to focus on finding a reasonable solution for the future in light of the risks of litigation. What is expected of clients at the mediation? There are several qualities clients bring to mediation that assure success · patience and perseverance to spend the time necessary to overcome obstacles which exist or arise during the mediation. Mediation isn't an easy process. It takes focus and effort, keeping in mind the goal of leaving with a problem solved; · listening and considering new information; · careful consideration and evaluation of whether a settlement best serves all important interests of the client, not just the financial ramifications of settling the dispute or going forward to litigation. Mediation has gained favor in recent years as a way to avoid the certain costs, financial and emotional, of going to court, while also avoiding the uncertainties as to outcome.
Clients are the most important participants at mediation and the only participants who ultimately have control over whether the dispute is resolved.
Is mediation confidential?
Yes, in several ways - · The mediator does not discuss the mediation with those not directly involved, unless permitted by the parties to do so; · An Oregon statute grants confidentiality to the mediation process; · The mediator must respect requests that statements made by parties in their pre-mediation submissions or the separate and private meetings with the mediator be kept confidential from the other parties.
Why get a mediator involved; why can't we just discuss it between us and our lawyers? Good idea. And, if this approach works, great!! It usually does work when the parties and their lawyers are able to communicate effectively. Mediation is useful in those circumstances where a neutral third party's involvement can enhance communication and provide a safe and informal way to facilitate settlement of the dispute.
How expensive is mediation? It usually costs a small fraction of the alternative - - paying the legal fees and other expenses necessary to prepare the dispute for decision by a judge or jury. It is not unusual for just the out-of-pocket expenses for depositions, experts, trial materials and the like to be $5,000-10,000 or more. Add to that the attorney fees, and the cost of having strangers (the jurors) resolve your dispute can easily exceed $25,000 in a relatively uncomplicated lawsuit. By contrast, a party's share of the mediator's fee for a half day of a two-party mediation is usually $1,000 (total half day fee is $2,000) and $1,500 for a full day ($3,000 total fee for full day). See "Fees and Terms" page on this web site.
The relief of getting a dispute or lawsuit settled or - - by contrast, the emotional toll of a year or more in litigation - - must also be considered in determining the true cost of mediation v. litigation.
Is mediation a formal proceeding? Not at all. It is serious business conducted in a relatively relaxed and informal environment. A day of mediation has to be considered a work day and is somewhat stressful, but without the emotional tension of a day in court. Remember that in mediation each party retains a much larger measure of control over the result than is the case when the matter is 'settled' by a judge or jury.
Do prior negotiations have any impact on the course of mediation? Generally, they do. This is true even though one or all parties have been careful to say "all prior offers are withdrawn if we can't settle it between ourselves and we go to mediation." It is human nature to assume that the party with whom you're having a dispute will not "go backward" at the mediation from prior negotiating positions, either by increasing the amount the plaintiff demands to settle or by the defendant decreasing the amount offered. Get good legal advice on how to approach your settlement discussions to try to protect against disappointing the other party or being disappointed yourself by hearing at mediation that the other side has gone the wrong direction from prior negotiations. A good rule of thumb is not to make your last and best offer prior to mediation, unless you have some confidence that it will be accepted and will get the dispute resolved.