Experienced mediators and counsel who participate regularly in ADR (alternative dispute resolution) hear lots of reasons to justify not mediating. Some lawyers are simply reluctant to try something that is new to them while others don’t want to settle cases, but want to win them in a courtroom, a forum that is familiar. In a growing number of industries throughout the country, mediation is a proven process that is being used by litigators to save time and money and avoid the risk of trial before an unpredictable judge or jury.
THE TOP 10 REASONS LAWYERS WON’T MEDIATE:
#1 “I DON’T WANT TO MEDIATE BECAUSE WE WILL APPEAR WEAK TO THE OTHER SIDE AND SIGNAL THAT I HAVE A LOUSY CASE.”
That simply isn’t true. Mediation is now so widely accepted that many practitioners recognize it as being almost always in their client’s best interests, whether the case is weak or strong. The only thing you can attribute to someone who wants to settle in advance of trial is wisdom, not weakness. Mediation is a voluntary, confidential process in which the parties are in charge and it avoids the risk that a judge or jury will make a decision that the parties cannot control, and sometimes cannot comprehend or accept. Expressing an interest in mediation does NOT signal a weak case.
#2 “I HAVE A SLAM-DUNK CASE AND THERE IS NO POINT IN MEDIATING TO TAKE LESS THAN WHAT WE WANT!”
Lawyers are trained to be advocates of their client’s point of view and in most instances they identify with their cases and then take a position they believe will be the outcome in court. This can result in an overestimation of what is truly a “slam-dunk” case. In reality that is rarely true where a judge or jury makes a determination using their discretion and interpretation of the law making it just too unpredictable to assure a particular outcome to a client.
Even IF the case is a “slam dunk” why not mediate? If you can get the other side to believe you have a strong case, even privately without acknowledging that to you, he or she will undoubtedly want to avoid the risk of trial and may well propose a resolution that is acceptable. If that happens, you avoid the additional expense and time delay of a trial while avoiding the risk that something could go terribly wrong during your case. You do not have to accept a settlement at mediation if you really don’t like it and you might learn something that will cause you to conclude the case really isn’t such a “slam dunk” after all.
#3 I DON’T WANT TO SHOW MY CASE TO THE OTHER SIDE BEFORE TRIAL AND THEY WON’T BELIEVE WHAT EVIDENCE WE FOUND.”
Why keep your case in your briefcase if you can use it to get a settlement on your terms without the cost, time delay and risk of a trial? Lawyers in their zeal usually overestimate the impact that the “smoking gun” or “bombshell” information will have at trial. Sometimes there is a simple explanation and the information disclosed to the court or jury turns out to be more of a whimper than a bang. Usually that information can be more effectively used in a mediation session where the mediator can obtain a more generous settlement using the bombshell information to impress the other side with its possibly devastating effect at trial. Often a trained Mediator can tell you why the information may not have the dramatic impact you think it will.
You should always disclose as much as possible to the Mediator to get their judgment on your entire case without holding back. Trial by ambush is increasingly looked on with disdain by courts and the lawyer who withholds information runs the risk of it backfiring if the court finds the information should have previously been disclosed.
#4 “THE CASE IS JUST TOO LARGE AND COMPLEX TO MEDIATE!”
Perhaps a number of years ago when mediation was still on the horizon and becoming an accepted practice this might have been a reasonable position, but surely is not today. Huge and complex cases, both financially and in the number of parties involved, have been successfully resolved in mediation in many different industries. Occasionally multiple sessions are spread out over a number of days where the issues are separated so they can be treated seriatim. Today Mediators are trained and experienced so they are not troubled by complexity because the process is eminently flexible. It is a tried-and-true method for settling both simple and complicated cases.
#5 “THE PARTIES AND EVEN THE LAWYERS ARE TOO EMOTIONALLY INVOLVED TO SIT DOWN TOGETHER AND MEDIATE.”
This is another red herring because the mediation process is designed to help people deal with their emotions. An experienced mediator will let the parties vent and thereafter help them develop some objectivity about their case that will facilitate the discussions between the lawyers and their clients toward a more reasonable settlement position. Both the lawyers and the parties need to understand that the case will be decided not just upon what can actually be proven, along with credibility of witnesses testimony, but the ultimate power and discretion in many cases that the judge or jury has to make decisions on what they believe is both a fair and equitable resolution. and that is the unpredictability with most cases. The key is what the trier of fact is likely to believe happened, along with the legal and equitable conclusions that they believe flow from them, which leads to the unpredictability of cases. Successful mediation can be effectively eliminate the unpredictability of a trial.
Unfortunately, mediators run into situations where it isn’t just the parties who are emotional and unable to set aside their positions, but many lawyers have also been entrenched in their positions for so long that they cannot be objective and keep their own emotions in check. Mediators can deal with that as well and often remind legal counsel to resist advocating and allow the clients to participate in the mediation process. Strong emotions are a normal part of most mediations and the trained and experienced mediator can both diffuse emotions and then redirect the energy of the parties toward a constructive outcome.
#6 “DAY OF MEDIATION IS JUST A WASTE OF TIME AND MONEY”
This comment usually results from inexperience with the process. In most industries where the parties come to the table voluntarily, mediations result in settlements in about 80% of the cases. Individual mediators have much higher records of success than that so statistically you have a very high probability that Mediation not only is not a waste of your time, but if done in “good faith” and not sabotaging it with road blocks and ultimatums, it can be a great success and a win-win for both sides. Even in the relatively rare case that does not settle in mediation, the process still works by eliminating many issues and refining those that are left, which helps to reduce the time and money it takes to resolve the remaining issues at trial. Mediation allows the parties to be more comfortable with the court process and more familiar with the strengths and weaknesses of their case before trial. In those few cases that do not fully settle the lawyers and the parties generally believe mediation was worth the time and effort.
#7 “THIS CASE WILL NOT SETTLE BECAUSE THE OTHER SIDE IS UNREASONABLE AND WILL NOT EVEN LISTEN UNTIL WE GET TO THE COURTHOUSE STEPS FOR TRIAL.”
This occurs because the parties and their counsel did not sit down at the table to fully discuss and exchange their views, but have only exchanged a few brief phone calls or emails back and forth so they don’t really know where the other side stands on the issues. They certainly haven’t had the skills of an experienced mediator working on their behalf to get them together and to facilitate a deeper discussion.
If you haven’t tried the mediation process, you can’t come to any reasonable conclusion as to the possible outcome of your case. The mere fact that the other side may talk tough doesn’t mean anything if they are willing to participate in a voluntary mediation. Despite their rhetoric, attendance at mediation speaks volumes about their desire to get the matter resolved. Most parties and counsel approach mediation in “good faith” and not with an intention to suborn the process. Statistics show a settlement is reached in the large majority of the cases well before getting to the courthouse steps.
#8 “MY CLIENT DOESN’T WANT TO MEDIATE AND WANTS A TRIAL.”
As an attorney you have a responsibility to convince your clients that it is in their best interest to mediate. In most cases when the client is hesitant, it is because they are unfamiliar with the process and are unwilling to pay for the attorney’s and the mediator’s time to prepare for and attend a mediation. It is imperative to convince them that the process will be time well spent and success is more likely than not and that even if the case is not entirely resolved, it will be a good use of the time and money to make the effort to eliminate many of the issues and to understand the other side’s position on those that remain. Often they can be persuaded when they understand that Mediation is the only forum where a creative solution that meets the needs of both the parties is possible. While a court is limited in most cases to an award expressed in financial or statutory remedies, mediation is only limited by the imaginations of both the parties and the mediator. The mediation process can dig beneath and go well beyond just financial or legal issues to create an agreement that both sides will accept because it resolves the emotional barriers that a court or jury cannot legally consider or resolve.
#9 “I HAVE TO SPEND THE TIME PREPARING FOR TRIAL WHERE I HAVE THE BEST CHANCE TO OBTAIN A LARGE AWARD OR GOOD SETTLEMENT FOR MY CLIENT, WHILE MAXIMIZING MY BILLABLE HOURS AND I DON’T HAVE TIME TO MEDIATE THE CASE TOO!”
Preparation for mediation is almost identical to preparation for trial. Advocates can do the best job for their clients in mediation if they know as much about the case as if they were going to trial the following day. The issues are identical and it provides a great opportunity to test your case, which ultimately saves time in preparing the case for trial, in the rare instance where mediation doesn’t fully resolve the dispute.
Ultimately you will have more clients and be able to do more productive work in your office if you get a reputation as a lawyer who effectively employs mediation as a resource. The agreement you reach at mediation may or may not be much different from what you would have gotten in court, but you achieve a final agreement acceptable to both parties without wasting your time, the high cost of trial and the ultimate risk of an unacceptable or negative decision by the court or jury. In the end, mediation is a far better choice for both you and your clients, and in turn allows you more billable time by clearing your calendar of cases that do not have to be tried while achieving the best result for you and your clients. You will avoid the unhappy client who didn’t get what they wanted at trial, or worse, what you may have lead them to believe a judge or jury would award or decide.
#10 “I DON’T NEED A MEDIATOR, I CAN RESOLVE IT BETTER MYSELF TO SAVE TIME AND MONEY.”
We lawyers are a proud bunch and we fancy ourselves to be astute negotiators under any and all circumstances. Why do you have to pay a mediator to do what you can do yourself?
The easy answer is because you cannot do it as effectively as a trained, experienced, neutral mediator who has no stake in the outcome and therefore commands the trust and respect of both parties. While you may not be as close to your case as your client, if you have lived with it for a while, it is difficult being truly objective. We learn to be advocates in law school and because of that, whether we want to recognize it or not, we tend to develop a position that is tough to change.
A trained and experienced mediator will help both you and your client see the strengths and weaknesses of your case which provides a more realistic and probable resolution of your case at mediation and if it had to proceed to trial. An effective strategy often used by a trained and experienced mediator is to act as “go-between”, but then take a “devil’s advocate” position with both sides to reach a more realistic resolution of the case. A trained and experienced mediator can present your arguments more effectively than you can because the mediator is not an adversary who is positioning themselves to sell their point of view. You cannot do it better yourself! (Sorry!)
NOW THAT YOU KNOW MEDIATION IS IMPORTANT IN EVERY CASE AND YOU DON’T HAVE ANY EXCUSES NOT TO MEDIATE…
“LET JUDGE LINDA RESOLVE YOUR CASE TODAY WITH CCMA!”*
*Please call me to set up your mediation appointment at (262) 424-8004