Litigation + Valuation Perspectives

Demystifying Valuation, Economic Damages + Forensic Accounting

Mediation and the CPA expert

mediation, CPA, expert, courtThe Merriam-Webster online dictionary describes the process of mediation as: “(T)he act or process of mediating; especially: intervention between conflicting parties to promote reconciliation, settlement, or compromise.”

Mediation is also described by dictionary.thelaw.com, as using: “A third party, neutral facilitator who assists parties in conducting effective communication and negotiation in order to find an appropriate resolution to resolve the dispute and result in a settlement.”

I have participated, as a CPA expert, in many mediations over the past 30 years. The sessions were requested by opposing parties to settle financial disputes. Some of the cases involved divorce business valuations, economic damages/lost earnings cases and family trust disputes.

In all the mediation cases in which I was involved, I was retained by one of the opposing parties to be a testifying expert in the event the parties’ contested case went to trial. Mediation, however, was always a choice the parties made prior to taking their cases into the courtroom. At these sessions, I would be asked to attend, solely for the purpose of being on hand to answer any questions asked by the mediator about the report I prepared. Sometimes I would not actually attend the mediation but would give input telephonically when the mediator would call.

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Prior to getting into the mediation process, the mediator would generally assemble both parties, their attorneys and any witnesses all together in a conference room. Here, the mediator would lay out what he/she hoped to accomplish between the parties. The mediator would also use this initial meeting to gauge how amicable – or not, the parties were with each other; also, to evaluate the parties’ emotional state before the mediator started their intervention.

The mediator would then sequester the parties and their attorneys in separate rooms. The mediator would go first to the room of one party and get a read on what the party was seeking in the mediation. The mediator would then go to the room where the other party was waiting and ask what that party wanted to achieve out of the mediation. The mediator would go back and forth, several times between the parties, hearing their positions. The experienced mediator would start to get the sides to come closer to each other’s desires in the mediation. Eventually, the mediator would announce that a compromise had been reached.

During the mediation sessions which I attended, I was often asked by the mediator to explain and clarify portions of my report. The mediator would also ask me to assist in calculating settlement amounts under different scenarios – right on the spot. I have been very fortunate – perhaps very lucky, to have every mediation I attended result in compromise between the parties. Sometimes this occurred within a four-hour span; other times, the mediation would run for as long as 10 hours and, on occasion, for days.

Generally, the mediation process is less stressful on the parties and their witnesses. It often also results in fees that are significantly lower than what the parties would expend taking their cases to court.

Donald R. Bays, CPA, ABV, CVA, CFF