Investor Protection Clinic - Student Blog

Mediation Tips and Tricks

Mediations happen at a predetermined location. This is anywhere that the parties agree to meet.  It could be an attorney’s office, a suite of rooms rented at a hotel, or even the mediator’s office. 

 

Securities disputes may be a bit different than other kinds of mediations.  Usually the two parties are put into separate rooms, in order to allow each side to speak confidentially with the mediator. The mediator bounces between the parties’ rooms, discussing various aspects of the case and settlement offers. Sometimes, there may be a third room in which the parties can meet and discuss things together with the mediator present. 

 

Many mediations proceed along a similar format. When the mediation begins, the mediator often starts in the claimant’s room to get a sense of you as a person and the factual background of the case. The mediator will then do the same thing with the respondent. After meeting both sides, the mediator will begin discussing and shuttling offers and counteroffers between the parties.  Don’t get discouraged if the initial offer is lower than what you were hoping, remember Mediations are marathons, not sprints!

 

Hopefully by the end of the mediation, an offer or counteroffer will be presented that both sides are willing to accept, and a settlement agreement will be signed. Usually, attorneys will have a settlement agreement already drafted that they can quickly modify to memorialize the settlement.  Most mediators often prefer to have the parties sign any agreement prior to leaving the mediation. However, even if a settlement is not reached, mediation still offers benefits. You and your attorney may learn valuable information during this process. 

 

Quick Tips for Mediation

  1. Meet with your attorney ahead of time to plan. Make sure that you discuss what number you are willing to accept as a settlement number, what your preferred settlement amount is, and also discuss anything that you want to stay private and not discuss with the mediator or share with the opposing party. 
  2. Prepare to go the distance. Mediations are often a slow-going process that may not even pick up until after lunch or until the time for the mediation to be over approaches. In some instances, mediation may drag on into the evening before the parties reach agreement.
  3. Bring food. Plan for the mediation to take more time than you anticipate.  You want to have something you can eat so that you don’t feel pressure to reach an agreement because you’re hungry.
  4. Bring something else to do. You should expect a fair amount of downtime. Naturally, there will be discussions between you and your attorney regarding what the opposing party offered or said or your strategy moving forward, but there will also be some downtime in which you have covered everything or while the mediator meets with the other side. Bring a book or something to do to help limit anxiety or boredom. 
  5. Graciously listen to all offers and counteroffers.  You may want to be careful about showing too much of a reaction to each offer and counteroffer.  Talk to your attorney about how to respond to offers.  If you want a moment of privacy with your attorney to consider your options without the mediator in the room, feel free to ask the mediator to step outside the room briefly.  A good mediator will understand that you might want to talk to your attorney privately before responding to any offer.

 

 

 

More about Paige Foley
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    Mediation is a monitored negotiation facilitated by a neutral third-party. It is a dispute resolution method available to investors. If the other side agrees, you can try mediation before ever filing a Statement of Claim and at any point afterward...