What to Expect When You’re Expecting... to go to a FINRA Mediation

Mediation is an alternative dispute resolution method in which a Mediator tries to bring the disputing parties together to resolve the dispute. It is a kind of ‘shuttle diplomacy’ in which the Mediator goes between the parties to the dispute to reach a mutually agreeable resolution to the dispute.

The mediation will probably take the whole day, so dress comfortably, and bring reading materials, your phone and/or your laptop, as there will be a lot of ‘down-time’ during the day.

A mediation generally starts sometime after 9:00 am with the parties to the dispute in at least two separate conference rooms. Your lawyer will let you know whether or not there will be an initial ‘joint session’ during which the lawyers will tell each side’s story (however, most Mediators now opt to avoid this ‘joint session’).

If a ‘joint session’ is held, after the joint session, the Mediator will hold separate ‘confidential’ meetings called ‘caucuses’ with each party to the dispute, usually starting with the Claimants. The Mediator will explain the ground rules of the mediation, and ask your lawyer questions. Then, the Mediator may direct questions to you, and let you know that anything you say will not be shared with the other party, unless you agree the information can be shared. You have probably already provided your lawyer with documents and information, and the other party probably has much of the information that was exchanged informally or through formal discovery.

After the Mediator has asked questions and received information, he or she will go to the other party’s conference room and spend some time with them clarifying the issues of liability and the losses or damages resulting from that liability.

During or after lunchtime, the Mediator may meet privately with the other side or with just your lawyer. This does not mean that the Mediator and your lawyer are making any deal without your knowledge; only that they may be discussing the facts of your case, and the law that may apply to your case and comparing other arbitration awards or court verdicts in similar circumstances in their experience.

The afternoon is when the parties have gotten a handle of the facts and the law that may apply to your case, as well as whether there may be insurance to cover all or a portion of the claim, and the financial ability of the party with liability to pay a damage award or settlement.

The Mediator will ask your lawyer for an initial demand. Since mediation is an agreed upon resolution, it generally is not effective to start negotiations at a 100% of the loss plus interest, plus attorney fees. Your lawyer will work with you to determine the initial demand.

After the Mediator conveys the demand to the other side, do not be surprised if the initial settlement offer returned by the other party is a relatively small fraction of the demand. This is not unusual, and the balance of the afternoon will be spent with the back and forth of successive demands and offers until, hopefully, a resolution of the dispute and settlement is reached.

The parties should sign or initial a brief memorandum of the settlement agreement reached, to be followed later by a more formal Settlement Agreement containing the usual Confidentiality provisions. If you achieve a resolution, as happens in most mediations, you can be proud that you did not waste time and money trying a case before an arbitration panel or Judge who generally will make rulings where one party wins and the other loses.