Considerations in Settling Cases (Mediation/Settlement Conferences)

Mediation is an alternative dispute resolution (ADR) method, where the participants meet with a third party (mediator) to negotiate a potential settlement. The mediator is required to be unbiased, and he or she does not work for either side. The mediator listens to each side’s position and helps to facilitate a voluntary resolution to the case. Mediation is significantly less expensive and time-consuming than a traditional courtroom trial. However, there are several points to consider before sitting down to the mediation/settlement conference.


More Than Meets the Eye

Although the mediation process may result in the parties reaching a settlement figure, the parties may not get a chance to discuss specifics of the corresponding settlement agreement, including the language of the release, who will sign the release, or how the agreement will be enforced. There is more to a settlement agreement than the allocation of money. It’s critical to have seasoned litigation attorneys working for you who understand all of these details in order to maximize the value of the mediation, while securing the best possible outcome for their clients. 


Take Your Time

During the mediation/settlement conference, take your time to go through all of the details, and rely on your attorney to negotiate the release language and other pertinent settlement agreement terms. If you do not address all the specifics at mediation, you could spend months negotiating minor terms of the settlement agreement, delaying the final resolution of the case (and potential dismissal of your lawsuit). 


Provisions of Contract

Every settlement agreement generally includes factual representations by the parties, release language, material terms (such as settlement payment amounts), and enforcement language. Sometimes these provisions require that action be taken by a specific date or within a particular time period. Your attorney will know precisely the right provisions to include in your settlement agreement to protect your interests. 


Plaintiffs vs. Defendants

Depending upon which side you fall (plaintiff or defendant), your goals for mediation and a final settlement agreement will be different. Typically, plaintiffs want the release to be as narrow as possible in order to protect their rights in a future lawsuit and/or with respect to claims unrelated to the litigation. Conversely, defendants prefer a release that is broad in scope, so they are relieved of as much liability as possible. Striking a balance between these two positions, and reaching an agreement regarding the same with the other side, is an essential task at mediation for your lawyer. 


Dot the I’s and Cross the T’s

Hammering out the details of your mediation agreement is hard work, but it can all be for naught if a signed settlement agreement cannot be presented to the judge to show that all parties have settled. These types of details are a critical part of the process, and your litigation attorney will know exactly what needs to be done and when. 


Regardless of the type of case, mediation can provide a process to achieve a settlement in lieu of an expensive trial. However, even if a “settlement” is reached at mediation, memorializing a final settlement agreement is more complicated than it appears. To get the most out of the process, you should always have a trusted attorney by your side. To learn more contact Jacob Epstein at