Orona Garcia & Galves, PC

Mediation

Orona Garcia & Galves, PC Mediation Services

At Orona Garcia & Galves, PC, we understand that disputes can arise in any business or legal context. Our mediation service is designed to provide effective and efficient resolution to conflicts, helping you avoid the costs and uncertainties of traditional litigation. With decades of experience in Southern Colorado, we leverage our expertise to facilitate productive discussions and negotiations, guiding parties toward mutually agreeable solutions.

Tailored Mediation Service

Facilitating resolutions that honor the interests of individuals, businesses, and public entities alike.

Expert Guidance for Conflict Resolution

Our experienced attorneys navigate disputes with skill, helping all parties achieve resolutions that honor their interests.

Facilitating Open Dialogue

We foster a collaborative environment where open communication leads to constructive solutions, preserving valuable relationships.

Clear and Effective Arbitration Options

Offering binding and non-binding arbitration services, we ensure clarity and closure while advocating for your rights throughout the process.

Attorney & Law Professor Emeritus, Fred Galves – Mediation Services

What Is Mediation?

Over the past few decades, using “MEDIATION” to resolve legal disputes, instead of going to court, is a practice that has greatly expanded and developed throughout the US, and in Colorado. Mediation has been defined as: “the intervention of a third person, a Mediator, into a dispute to assist the parties in negotiating a jointly acceptable resolution of issues in conflict, where the Mediator meets with the parties [, at a neutral location or online,] so that the parties [and their lawyers] can discuss the dispute and explore a variety of [possible] solutions” to ultimately settle their lawsuit. The reality is that today very few cases go to trial (less than 2%). As a result, because most cases settle out of court, and many do so by using mediation, it is important that lawyers and parties who use mediation have confidence in both the mediation process, and in the experience and expertise of their selected Mediator. Justice and Due Process in the modern context—where very few cases go to trial, and most cases settle out of court—require no less.

Background: Experience and Expertise

Fred Galves has been a licensed attorney in Colorado since 1988, and beginning in 1993, he became a full-time tenured law professor in California (University of the Pacific, McGeorge School of Law) for almost 25 years before retiring. As a former law professor and an attorney Mediator, Fred brings a wealth of unique experience and expertise, along with a calm academic demeanor, and a very creative approach, to help litigants resolve their legal disputes successfully.

After graduating from Harvard Law School in 1986, Mr. Galves was a Judicial Law Clerk for the Hon. John L. Kane, Jr., Federal District Court Judge (Colorado). He then worked in a large litigation law firm in Denver, Holland & Hart, before becoming a full-time law professor. As a law professor, Mr. Galves specialized in teaching “Civil Procedure” and “Evidence,” given his litigation background, and he taught “Computer-Assisted Litigation” and “Banking Law & Regulation,” as well as several other courses. Mr. Galves also is a casebook co-author of two textbooks used in law schools across the country: (1) Syd Beckman, Susan Crump & Fred Galves, Evidence: A Contemporary Approach, 4th Ed., West Academic Publishing, (2020) (“Interactive Casebook Series”); and (2) Fred Galves, Ed Imwinkelried, Jay Leach, Evidence Simulations, 2nd Ed., West Academic Publishing (2017). Mr. Galves also has authored many law review articles. He also has been a visiting law professor at Sturm College of Law—Denver University, UC Davis Law School, and Fordham Law School in New York City.

After retiring as a full-time tenured law professor in 2015, Fred became a legal consultant to law firms and he began serving as a Mediator, both in California, and later in Colorado. Today, he is a partner at the law firm of Orona, Garcia & Galves in his hometown of Pueblo, Colorado. At his law firm, Mr. Galves specializes in all aspects of commercial and complex litigation, contractual and business law disputes, family law, will & estates, and he serves as corporate counsel to both private and public entities. Mr. Galves is a Mediator because he desires to help litigants resolve their lawsuits efficiently, privately, and inexpensively without using formal courtroom litigation.

The goal and purpose of mediation is to bring parties with a legal dispute together informally, and often early in their dispute, if possible, to resolve all matters between them in a comfortable setting that ensures their legal concerns are satisfactorily addressed privately, and that their cases are concluded timely. Many attorneys and clients welcome the opportunity to be fully heard on all their legal issues, and to settle their dispute inexpensively, without having to go to court. Otherwise, often what are sometimes mere “simple misunderstandings” or “small disputes” can soon mushroom into expensive formal litigation if mediation is not utilized.

Because mediation is an alternative way to resolve a case without using a judge or jury, and because the formal Rules of Civil Procedure and Evidence do not apply; mediation is much less expensive and much less time-consuming than formal litigation, and it is confidential. Further, the parties’ preexisting relationship often can be salvaged as there is improved communication and better rapport developed before the dispute grows into a large, contentious, time-intensive trial. Parties benefit by having their disputes resolved informally, quickly, privately, efficiently, and opt for a result that they can live with long after their dispute is resolved—because they are the ones who, working together, design and implement their own resolution to their own dispute. 

The added benefit of reducing possible misunderstandings that are often at the core of a legal dispute makes mediation a more attractive alternative to the expensive process of courtroom litigation. By using mediation, the notoriously extended time lags associated with courtroom litigation can be avoided, which is important when time is of the essence and the parties need complete and fully satisfactory closure of their dispute as soon as possible. Because the parties are actively involved throughout the mediation process in shaping an acceptable remedy, they very often can orchestrate many mutually satisfactory aspects of the Agreement that they create.

The Mediator guides the discussions between the two parties and is paid equally by the two sides. The Mediator first helps to frame the issues that are to be resolved. The Mediator then adeptly guides the parties with effective communication and provides an important platform for the helpful exchange of critical information. The Mediator ensures that the parties fully understand the underlying interests and concerns of all involved as a foundation for settlement.  

The Mediator’s expertise is used to enable the parties:

(1) to communicate more effectively with one another;

(2) to frame and reframe issues so they can be more easily decided;

(3) to identify workable solutions to complex problems;

(4) to help those involved in the case set realistic expectations and find
common ground as their factual and legal concerns are addressed;

(5) to help produce a creative solution that is beneficial to both sides; and,

(6) if requested, Mediators can assist in drafting a Settlement Agreement.

Keep in mind that Mediators do NOT order people to do things or try to force a result to be accepted. Instead, they simply help the parties reach an acceptable and often creative compromise. So, unlike a judge (or jury), a Mediator does not make a final decision for the parties. In a mediation, the parties ultimately control if they will voluntarily consent to any proposed settlement. This is why it is very important not to confuse “Mediation” with “Arbitration”—even though both are methods of Alternative Dispute Resolution (“ADR”).

Arbitration is where the parties select a third-party to resolve their dispute after a presentation of facts and laws and both sides agree to abide by the Arbiter’s decision. So, an Arbiter chooses a “winner” and a “loser,” and that decision is final, with a very limited right to appeal. In an arbitration, the parties give up their right to trial and instead agree to have the Arbiter decide the merits of their case. In contrast, a Mediator makes no decision, and there is always the possibility to go to trial, if the parties cannot voluntarily settle their case. There is no voluntary settlement of the dispute by the parties in arbitration. Thus, a “Mediation” is not an “Arbitration.”

Given the Mediator’s role, it is very important to select a Mediator who will actively engage with the parties and their counsel to truly help the parties reach a good settlement. Unfortunately, some Mediators do not fully understand the importance of their role in facilitating such positive solutions. For example, although some Mediators may listen very attentively to parties and their lawyers discuss the supporting reasons for their legal positions—instead of genuinely working with them actively, often by pushing and challenging them, and by bringing a fresh perspective to the dispute—some Mediators will simply act as a “go-between,” that is, merely report, or “parrot,” what each side may be offering to the other side. Of course, the parties already can do that on their own by negotiating. Accordingly, a Mediator should fully understand the underlying interests and concerns of the parties, and then provide creative resolutions, and arrive at possible “win-win” solutions that the parties may not have even considered, but that the parties can live with, both at the time of settlement, and for many years thereafter. Good settlements must be “built to last.” So, a good mediation involves much more than just “Getting to Yes.”

Nothing is more frustrating and disappointing to parties trying to resolve their legal dispute than to have hired a Mediator who is not adequately and thoroughly prepared for their mediation. Mediation takes a lot of work. So, if the Mediator hopes to be successful, or even to be helpful, that means that the Mediator’s meticulous preparation must be comprehensive and must have occurred well BEFORE the day of the mediation.

A Mediator who does not “do their homework”—that is, read and understand all submissions, documents, evidence, mediation briefs, current positions and outstanding offers, and who does not research the applicable law and how that law specifically applies to the intricate facts of the case—is just plain lazy, and therefore is really in no position to help the parties in the mediation beyond what the parties can do for themselves through basic party-to-party negotiations on their own. Accordingly, disputants should not hire a Mediator who just “wings it” through the mediation and basically learns about the case and the applicable facts and law in the dispute for the first time during the mediation itself. It is critical that a Mediator understand this basic professional obligation of a Mediator to prepare adequately for the mediation.

Parties and attorneys often ask if mediation is right for their type of case and their particular legal dispute. But legal disputes are legal disputes. They all have the potential to be settled. As a result, mediation can be used in nearly every type of dispute, including, but not limited to: personal injury from accidents or intentional actions; contractual disputes; professional malpractice; partnership and corporate business disputes; real estate or other property disputes; family law disputes; employment disputes; trust and estate disputes; will contests; civil rights cases involving sex, race, age, or other types of discrimination; and even in criminal matters.

It is advisable to mediate a case as soon as the parties can: (1) evaluate the merits of their case realistically; (2) assess settlement options; and (3) engage in a reasonably accurate cost/benefit analysis of litigation and trial. Accordingly, the appropriate time for mediation is often fairly early in the dispute. In fact, some disputes can be mediated even before a complaint is filed in court. An early neutral evaluation of the potential claims and defenses involved in a potential lawsuit can be extremely beneficial, especially if cost and timing are very important concerns to the parties. Therefore, there is a good chance to settle a case if it is mediated early. In addition to time and money efficiencies, early mediation brings people to the table at a time when they are still likely to be flexible, and they are still open to hearing and considering the strengths and weaknesses of their cases; rather than after their positions may have hardened and large litigation costs have been spent. All parties should enter mediation with open minds and a genuine willingness to modify their positions, at least to some degree, based on the actual and realistic merits of the issues involved, and the overall strengths and weaknesses of their cases.

As such, mediation should not be attempted unless both parties truly have room for at least some negotiation. In fact, attorneys entering mediation will often expect the other side to be willing to listen and modify their position if presented with a legitimate basis for doing so. In short, if you expect the other side to be open-minded about your client’s position, then you must also be open-minded about their client’s position. If the parties engage in mediation in good-faith, then each side can expect the other side to negotiate—if the facts and law support such action. However, it is nearly impossible to mediate a case if the parties have already demanded their absolute bottom line or they have offered their final top dollar. So, if the parties are willing to modify their positions, even a little, then it is not too late to mediate. In terms of the stage of litigation, considering mediation often makes sense, no matter how far along the lawsuit is, even if it is between trial and a pending appeal, and even after there has been a reversal or affirmance on appeal. If there is still a pending dispute, then mediation should be considered. Sometimes even the most stubborn litigants can change their position if presented with good reasons to do so.

Once you and your client have decided that your case is appropriate for mediation, you should still contact the other side and suggest mediation. It is true that some attorneys feel that being the first one to request mediation can be perceived as “a sign of weakness,” and thus, some attorneys will reason: “No, let the other side make the first move.”

However, even if there may not be a preexisting contract provision requiring mediation, or a judge may not have already ordered mediation, over the years mediation has gained enough recognition as a valuable tool where most attorneys and parties now typically respond very positively to such overtures and view mediation as a natural avenue to explore, given the possible time and cost savings for their clients. As a result, far from being perceived as a sign of a weakness, an offer to mediate is normally seen as an indication that the side who has suggested mediation is confident that if they can present their views to an unbiased Mediator, who is knowledgeable in the law, then they have a good chance to reach a good resolution of the dispute outside of court. Still, when possible, attorneys may want to put mediation clauses in their contracts or in other legal documents, so this “who-raises-mediation-first?” question would become a moot issue in the future.

Once the parties decide to mediate the dispute, they need to select a Mediator. The most important personal traits to look for in a Mediator are neutrality, understanding, patience, perseverance, creativity, and a reasoned, yet creative, demeanor and approach. Do not make the mistake of trying to select a Mediator who you think would be helpful or sympathetic to your side, like you would select a potential juror, or select a helpful judge if you are given the chance.

Selecting an impartial Mediator is much more important than trying to hire a Mediator who might appear at first glance to be favorable or predisposed to your side. Such a Mediator would likely end up lacking trust and credibility with the other side. Hence, the parties should select an unbiased Mediator, who is a facilitator or collaborator that is on equal footing with both parties.

 

When it comes to mediation, “winning” is when both sides reach a good settlement resolving all issues; and “losing” is when the parties fail to come to an acceptable resolution. But even when an ultimate resolution is not reached, often mediation can still be worthwhile if afterwards the parties have better clarity about the other side’s legal position, and they have crystallized their understandings of the key motivations and interests that have been revealed in the process.  

Therefore, rather than selecting a Mediator as “decision maker,” whom you want “on your side;” you should instead try to select an expert Mediator to help the parties arrive at a mutually agreeable solution to the dispute. In fact, although it may seem counterintuitive, sometimes a party, as a show of strength, will allow the other side to choose the Mediator without objection. By doing so, the side allowing their opponent to select the Mediator sends a strong implicit message to their opponent: “we are so confident in the merits of our case, that if we can convince the Mediator, whom you have chosen and you trust, that Mediator will be able to convince you of the compelling merits of our case, and probably do so better than we could alone.” But no matter the nuanced strategies that may be employed in mediation, and in selecting a Mediator; the Mediator must remain open and neutral throughout the process, for both sides, in order to facilitate good communication, promote excellent understanding and clarity, and have the necessary trust and confidence of both sides to help the parties to meaningfully negotiate.

A Mediation Session Would Typically Follow These General Steps:

  • [Submission of Payment, Preliminary Information Exchange, Possible Submission of Mediation Briefs to the Mediator for Consideration before and in Preparation for the Mediation Session [See Suggested Outline of the Mediation Briefs, infra];
  • Introduction of the Dispute by the Mediator;
  • Mediator’s General Explanation of the Mediation Process for the Mediation Session;
  • Discussion with Each Side Individually (“Caucusing” with Each Side Individually);
    • Plaintiff is often requested to go first, and asked to make an opening offer;
  • Presentation by Each Party to the Mediator of Their Claim(s) or Defense(s);
  • Presentation by Each Party to the Mediator of Their Key Interests and Concerns;
    • Note: This “caucusing” with each side individually can take several turns;
  • Discussion Collectively or Individually about a Potential Resolution of the Dispute;
  • Neither Party is Required to Accept any Proposed Resolution;
  • Mediation is Simply a “Facilitated Negotiation” with the Help of the Mediator;
  • If an Agreement/Resolution is Reached Voluntarily by Both Sides:
    • The Mediator would follow up with both parties to ensure that the resolution is correctly written up to reflect their Agreement; and,
    • The Mediator would make sure that the Agreement is/will be fairly and timely implemented by both sides, and by all involved.

1. A Pre-Mediation Conference Call

After a Mediator is selected and the time and location of the mediation are set, the attorneys and the Mediator should hold a brief pre-mediation conference call to reach agreement on some basic ground rules. These include appropriate style of mediation, individuals who will be present, materials needed by the Mediator prior to the meeting, assumptions about the mediation procedure, and the amount and allocation of mediation fees. One of the key points to cover in this discussion is that it is essential for each side to have a designated representative at the mediation who is authorized to settle the case and who commits to remain until all settlement possibilities are explored. Without someone on each side with full settlement authority, the likelihood of success is severely reduced.

2. Preparing For the Mediation 

An attorney’s time and efforts are well spent in thoroughly preparing their client and their presentation for mediation. While mediation is conducted in a less structured and formal setting than a courtroom, the more casual nature of the process does not diminish the importance of advocacy, with persuasive arguments, strategy, and appeal to logic. Keep in mind that the other side will be evaluating the merits of your case. And in a joint session, your client will be evaluated as a witness, and you as an advocate. This is your opportunity to persuade them on the merits of your case and the risk of litigation if settlement is not achieved. Competently and persuasively facing the other side is crucial. Settlement values can change significantly if clients and attorneys hear credible, well-prepared presentations, even if indirectly through the Mediator during private causing. 

In preparing for your presentation, do not refrain from using evidence and visual aids just because you are not in a formal courtroom. Using demonstrative evidence may assist you in explaining and clarifying your perspective and show confidence and competence. Indeed, photographs, emails, reports, or other details which might or might not be admissible in court may nevertheless be very persuasive in this setting. Excerpts from depositions that present the highlights of your evidence can also be persuasive.

3. Submission of Mediation Briefs (If Requested)

Depending upon the complexity of the factual and legal issues involved in a case, and the amount of money at stake in the case justifying the little extra expense for additional Mediator preparation time, the parties may wish to submit “Mediation Briefs” to the Mediator for the Mediator to consider before the mediation session. These briefs can either be confidential—that is, submitted only for the Mediator to see and consider, and not the other side—or, the briefs can be open, where both the Mediator and the other side can see and consider what has been written and presented in the briefs.

What follows are typical brief items/headings that are usually addressed in the Mediation Briefs for the Mediator, and the other side if open (with a 5- or 10-page limit typically for each brief); and with longer page-limits if requested, and agreed to by each side to pay for the Mediator to read and consider the briefs in preparation for the mediation session):

  • PARTIES AND COUNSEL
  • STATEMENT OF FACTS
  • DISPUTED FACTUAL ISSUES
  • STATEMENT OF THE LEGAL CASE
  • APPLICABLE LAW AND DISPUTED LEGAL ISSUES
  • OUTSTANDING OFFERS/COUNTER OFFERS
  • SETTLEMENT EFFORTS SO FAR
  • ATTORNEYS’ FEES AND COSTS
  • CONCLUSION
  • ATTACHMENTS

4. The Joint Session

When the mediation begins, present your opening statement, if requested by the Mediator, in a logical, persuasive manner. Just as in a courtroom opening statement, you are presenting the facts of the case to be supported by the evidence. It is best to direct your remarks to the party/client on the other side as well as to opposing counsel. You are more likely to elicit empathy on behalf of your client if you appear rational and reasonable. It is not advantageous to be offensive or unnecessarily aggressive in an effort to be intimidating (which is often counterproductive).

Try to present all your facts and law and argue to convince your opposing party that it is in their best interest to settle today. Cases are settled if there is a genuine fear that failure to settle may result in a court verdict that is less favorable than what can be achieved through mediation. Thus, it is not to your advantage to conceal facts or legal arguments that might persuade the other side of the strength of your case. Let your opposition know what they are up against. It is also your responsibility to prepare your client to make persuasive remarks during the mediation, while still maintaining a pleasant demeanor.

As the opposing side (or the Mediator in a caucus) presents your opponent’s case, you and your client should show respect for them and for their respective roles. Listen intently and respectfully and refrain from interrupting or reacting to each comment. Make notes and try to wait your turn to speak. When you are representing a corporate client or an insurance company, efforts should be made to personalize their interests. 

5. Caucusing (Where the Mediator Meets Individually with One Side at a Time) 

After the collaborative or joint session is concluded, if there even is a joint session beyond an introduction of the basic issues in the case, Mediators typically will hold separate caucuses to meet individually and in private with each of the parties. Note that the Mediator may go to this step immediately and skip the whole joint introductory session. In these individual alternating caucus sessions, the Mediator discusses privately, first with one side – and then with the other – the case strengths, weaknesses, personalities, and key legal and factual issues as well as any other relevant matters. Confidences revealed during these separate caucuses are protected by the Mediator and will not be revealed to the opposing side without permission. After each caucus, typically plaintiffs’ demands are lowered, and defendants’ offers are increased. Mediators commonly conduct several caucuses and communicate several demands and offers back and forth before the parties reach settlement, or an impasse. Because parties are more satisfied with agreements that have been reached incrementally, it is best not to hurry the process. Mediators often play “Devil’s Advocate” for the opposing side during these alternating caucusing sessions. 

If parties reach an impasse, and if the attorneys then request it, the Mediator at that point may offer a range of probable outcomes in the Mediator’s opinion for the parties to consider; but again, only if the parties request it. The parties are not bound by these parameters, of course, because the decision to settle is always exclusively theirs, but an assessment of possible outcomes can still be helpful in the end for the parties to consider.

6. Settlement

If the parties can reach a settlement, then once they have orally agreed to a settlement, the basic terms of the settlement should be committed to writing and signed by the attorneys and the parties so that the parties can rely on the settlement terms. When informal, hand-written memoranda are drafted and initialed, they can be replaced later with more detailed, formal agreements. The important point is that at the close of the mediation there must be clarity among all the participants as to the status of their relationship: an oral agreement; and preferably an enforceable written agreement; or at least a memorandum of understanding to be made into a legally enforceable contract later.

7. Client Benefits

As legal counsel, you have the ethical responsibility to inform your clients of what they just achieved by mediating and reaching a settlement of the case: cost savings; reduced stress; reduced risk of an undesired result; expeditious resolution; confidentiality of the process that leaves client dignity intact; full client participation with the opportunity to vent or tell their story; and maintenance of control over outcome (and they always had the opportunity to opt out of the mediation at any point). Make sure that your client feels that by personally participating in the collaborative mediation process, the client was permitted to tell their own story, and therefore, feels that they had their “day in court.” 

8. Client Appreciation of Attorney’s Actions

As a client relation tool, mediation is highly advantageous for attorneys. In a traditional practice setting, much professional effort, time, skill and expertise are expended on these cases out of the client’s presence. Thus, the client is not as likely to appreciate fully your professional assistance and the justification for your legal fees—but in a mediation, they get to “see you in action” fighting for them at each stage of the mediation.

9. Conclusion

The key to the successful representation of clients in mediation is to remember that the process depends on a certain level of collaboration between the parties to achieve a workable settlement. Thus, the adversarial nature of many attorneys’ representation of their clients in litigation needs to be tempered by the recognition that parties often respond better to an advocate’s approach that signals a strong case. Cases settle because the level of risk (risk in terms of money, time, or the potential for an unsatisfactory verdict) involved in going to court is unacceptable.

However, if parties believe that they are being bullied during the mediation process, they may lose sight of the risks of going to trial and stake out a position that will make settlement impossible. Usually, emotion and intransigence are the enemies of logic and a thoughtful long-term perspective. Help your clients not to fall victim to anger and stubbornness in the process. Have your client think more in terms of long-range goals rather than short-term, often emotional, reactions.

Therefore, be an advocate for their true long-term interests, which requires you to be fully aware of your clients’ actual underlying interests at stake. Be prepared to present your perspectives in a way that makes them sound reasonable and palatable to the other side, and to your own client. Mediation is a powerful tool to add to your toolbox; so, use it wisely for your clients.

Although the benefits of mediation are many (see above), mediation may not be beneficial for all clients, in all cases, and in all situations. So always be mindful of the risks and potential downsides of mediation in certain circumstances. The following are some cautionary checks for you to consider which MAY make your case inappropriate for mediation, or suggest that mediation should be postponed for a while until certain circumstances evolve to make mediation more conducive to possible settlement:

  • Avoidance of Full Disclosure and/or “Free One-Sided Discovery”). Be suspect of parties who attempt to manipulate the mediation process so that full disclosure can be avoided, as they attempt to conceal important information necessary for possible settlement during the mediation. At the other extreme, mediation can be an opportunity for your opposition to obtain some keen insight into your facts, evidence, case theory and trial strategy. Thus, make sure to also consider this type of over-disclosure motive of an opponent. In other words, mediation in such circumstances is sometimes referred to as “Free One-Sided Discovery,” where one side can find out as much as they can from the other side. They learn all they can about your case, and yet, simultaneously, conceal much of their own case from your client, as if they are saying: “We are mediating here, not to exchange any information about our case to you, but instead only to learn about your case and evidence, as we are really just preparing for trial now and have no intention of settling.”
  •  Delay and Expense Tactic. Be careful not to fall victim to an opposing side who is not mediating in good-faith, but instead uses mediation, not only to obtain “free discovery,” but also to slow down the litigation process as a delay tactic, while also seeking to increase your client’s cost and expenses, particularly if there is unequal bargaining power and one side is using mediation solely to “out-spend” and/or to “out last” your client;
  • Defenseless Client. Particularly in domestic cases, clients may be unable to articulate their own needs and protect their interests. This is a particularly common dynamic in marriages dissolution cases when one spouse has always made all important family decisions or has controlled the spouse during the marriage. Don’t allow your client to be completely shut down or intimidated or be overly accommodating to the other side.
  • Weakened Client. Mediation can affect the momentum of a case and may end up being just “a big waste of time.” Mediation might even desensitize your client as a witness. For example, it could be difficult for your client to continually re-live an accident, or emotional incident for the mediation, and then possibly be flat for a trial in front of a jury.
  • When the Case is Not Complete. Unless you and your client are willing to take the risk of not knowing all the potential weaknesses in your case, early mediation may not be wise. Sometimes mediation can be premature where the parties may not quite be ready;
  • Psychological or Mental Problems. There are numerous mental illnesses which obviously indicate mediation may not be wise. Be cognizant of such things as depression in your client. Always know and protect your client, even against themselves.
  • Spousal Abuse. Generally, this type of abuse makes mediation inappropriate and possibly even physically dangerous.
  • Client Reticence to Mediate. After having thoroughly explained the mediation process, listen to your client, both to what they say and to their non-verbal communication. If they have strong reservations about mediation, for whatever reason, and not merely a fear of the unknown, listen to their request and be sensitive to their concerns. If they cannot be convinced of mediation, do not try to force them.

Some cases are more difficult than others to mediate, but this does not mean that a good faith effort should not be made. The cases to watch out for include ones with high levels of conflict or extreme emotional turmoil. Always attempt to give your client time to calm down and perhaps see the value of mediation after they have had time to reflect. Cooler heads often prevail.

Finally, and it bears repeating, as an attorney for your client, please keep the following benefits of mediation in mind for your clients, and be sure to effectively communicate these ideas to them so that they fully understand them and what is at stake:

  • The Mediation process can be, and often is, far less stressful than a formal lawsuit with court proceedings because one does not have to worry about being bound to comply with an adjudicated outcome that they do not like and with which they may not agree.
  • The Mediation process is less acrimonious than court proceedings. The parties work together in the process of finding a mutually acceptable agreement, instead of fighting against each other in a drawn-out court battle.
  • The Mediation process is completely confidential. Whatever is said in the mediation stays in the mediation. Formal litigation and trials are all public record.
  • The Mediation process can often yield better results than trials. The parties to the Mediation can decide what is most important to them and try to incorporate that into their Settlement Agreement. And because neither party must agree to resolve their claim in mediation, the final outcome must be one that both parties are at least OK with. Otherwise, they simply would not agree to any Settlement Agreement and would elect instead to go to a formal trial.
  • The Mediation process is less expensive and faster than a court case. A party can save time and money if they do not have to go through an entire trial, and engage in drawn out Discovery, when they successfully resolve their claim during the Mediation process. Clients are most appreciative if you can save them substantial amounts of time and money.
  • Mediation often involves more compromise than just bargaining over a monetary amount. Creative solutions need to incorporate other aspects of settlement, such as different work assignments, new work arrangements, new training, even written apologies or other key acknowledgements by and between the parties, that the parties will fashion themselves, instead of a court that will just issue a judgment pronouncement with which neither side, or even both sides, might not agree or desire. Parties to a mediated Settlement Agreement need to be able to walk away from their cases after mediation feeling as though they really have been heard, and a fair result was achieved, with a well-balanced well-thought out Settlement Agreement.

Please feel free to contact Mr. Galves, at (916) 248-3051, or fgalves@orona-garcia.com.

Mr. Galves is open to answering any questions or present more information on the Mediation process or discuss Mediation in general, or in more detail. Thank you.

HELPING WHERE IT COUNTS

Empowering Your Path to Resolution

Engaging in mediation or arbitration can be a powerful way to regain control over disputes. Our attorneys are here to empower you with the legal knowledge and strategic support needed to navigate these processes successfully. Let us help you find a resolution that allows you to focus on what matters most—your goals and future.

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