Mediation and Trial

What is mediation?

Mediation is a process in which an impartial third party presides over a settlement conference between the condemning authority and the condemnees. The impartial third party is known as the mediator. The mediator will listen to the presentations of both sides and then attempt to persuade the parties to moderate their positions so that the case may be settled. 

Can the mediator decide how much money I get or force me to settle my case? 

No. This is the primary difference between arbitration and mediation. There is very little likelihood that you will go through arbitration, since arbitration in condemnation cases is only used when the parties have previously agreed to submit their dispute to arbitration. In arbitration, the impartial third party (the arbiter) actually determines the settlement. In mediation, the impartial third party (the mediator) can only recommend a settlement. 

Can I reject the recommendations of the mediator? 

Yes and the condemning authority is free to reject the mediator’s recommendations as well. 

Who serves as the mediator?

Most mediators are either retired judges or practicing or retired attorneys. Most mediators have some familiarity with eminent domain cases, having either presided over them as a judge or having represented one side or the other as a practicing attorney. 

Do I need to attend the mediation conference? 

Yes. The order requiring mediation generally orders the parties and their attorneys to be in attendance. This requirement makes it more likely that a settlement will be reached since the persons who must agree on the settlement (the parties themselves) are in attendance. 

Who else will be at the mediation conference?

In most cases, only the mediator, the parties and their attorneys will be in attendance. From time to time, one side or the other may find it helpful to have one or more of their expert witnesses in attendance.

Do I need to say anything at the mediation conference? 

No. In most cases, your attorney will speak on your behalf. Statements you make may affect the outcome of the mediation conference, overall negotiations or the trial, so it is important to discuss statements you may make with your attorney. 

How does the mediation conference usually work? 

The mediator will generally begin the conference by introducing himself and asking the participants to introduce themselves. The mediator will then probably ask the attorneys to explain to him the facts of the case and their clients’ positions. 

During the conference, the mediator may meet with only the condemning authority representative and the condemning authority attorney. On other occasions, the mediator may meet with only the owners and their attorneys. During these types of meetings (generally referred to as caucuses), the other side is typically asked to leave the main conference room. There will be occasions when the mediator will meet with all of the participants together. 

While some mediation conferences produce no offers of settlement, the majority of conferences produce offers and counteroffers. At the conclusion of the conference, the mediator will prepare a report to the judge. If the case settles, the mediator will write down the terms of the settlement and ask the parties to sign the report. If the case does not settle, the mediator may declare an impasse, continue the mediation conference to a later date or make other recommendations to the judge.

How do I get my case set for trial? 

Your attorney or the attorney of another party in the case will submit a notice or motion to set the case for trial. The judge will then enter an order either specially setting your case for trial on a specific date or putting your case on a docket with other cases. 

When will my attorney or another attorney in the case ask for the case to be set for trial? 

The earliest a party may appropriately ask that the case be set for trial is as soon as the case is "at issue," which means as soon as all parties have submitted their required pleadings. This usually happens within 60 days of the filing of the case. 

From a practical standpoint, the parties usually ask that the case be set for trial once they have retained their expert witnesses and have received from those witnesses the opinions which will be presented as evidence at the trial. 

What happens if the judge does not specially set my case for trial but, instead, puts my case on a docket with other cases? And what is a docket sounding?

In that case, the judge will generally hold a special hearing known as "docket sounding" a week before the commencement of the trial docket. There, the judge will give the attorneys whose cases are set for the trial docket an idea as to when during the trial docket their cases will be called.