Currently about 80 to 90% of all cases which are sent to court ordered mediation settle and so therefore this is a good tool for courts to use to manage the court schedules and also to assist litigants in reaching a resolution which has finality and certainty and much less risk and investments of time, energy, effort and money.
You have to watch out though because at the end of the mediation you may think you have an agreement but you really don’t. Many mediation agreements contemplate a general release document being drafted and agreed to by the parties as a condition of the settlement reached at the mediation, but that document is only drafted days after the mediation conference is over. If such a document is required as a condition to the settlement actually going through, then you really haven’t reached a settlement quite yet and sometimes this could lead to much difficulty, consternation and out right animosity between the parties trying to jockey for position so as to be in the best situation in the event that the settlement agreement and/or general release document fails or is breached by one party or both.
So the moral of the story is that as you’re walking out of the mediation and you think you have a settlement but you have a lawyer who’s telling you that you and the other side still have to agree on a general release document, don’t go out and buy a new car yet with the money. There is still a chance you may not get any money as a result of the settlement because there may not be a settlement. Make sure you ask your lawyer about the issue of the drafting of a general release document and what types of issues may arise, and also try and have your lawyer deal with all these issues at the mediation rather than put it off. The hardest time this can be done however is when it’s midnight, the parties have been mediating for 18 hours, and everybody wants to go home. Or some thing like that. Try to avoid those situations but even if you find yourself in that situation, or something like it, resist the temptation to walk out the door leaving things undone. It’s better to get it all done while everyone is still together instead of trying to do it via email, fax, phone or text message days later when people aren’t so caught up in the process and may not be so pliable.
