When attorneys (or parties, when attorneys have not yet been brought into the dispute) are unable to settle a dispute, mediation should be seriously considered for the following reasons. 

Mediators are trained to resolve disputes

Mediators are trained to listen and observe, searching for areas of agreement and what is truly important to the parties.  As a neutral, a mediator is trained to patiently investigate the facts, interests and emotions with each side and assist them to reach a mutually acceptable agreement.  A mediator will know from experience what will work and what will not and how to keep the parties from becoming discouraged too early in the process.  Further, the mediator’s sole goal in the process is helping the parties reach a mutually acceptable resolution.

Mediators can confront parties in ways that counsel cannot

Although an attorney generally knows when a client is objectively unfair or unrealistic, confronting the client is difficult. Mediators can reality test with the client without impugning the ability of their counsel. Mediators can observe that approximately 95% of all civil cases are settled without a trial and that parties usually do not improve their net position from pre-trial offer/demand.   

Mediation is confidential

Everyone understands that mediation is totally confidential and statements are not discoverable or admissible later in a case. Thus participants are able to freely explore all possible means to settle.

Mediation puts all players on the field

The ultimate decision maker for each side is generally present at mediation. This important facet is often lacking during regular negotiations. Thus, counsel must deal with their client in real-time, preventing negotiation momentum from stalling due to having to check with someone or something not present.

Mediation forces all attorneys to seriously focus on settlement

Often attorney settlement negotiations are only a brief discussion after depositions.  More serious settlement discussions are often only attempts by one lawyer to see if the other lawyer is willing to make a concession without the inquiring attorney making a corresponding one.  Mediation, however, requires attorneys and their clients to jointly analyze their case, strengths and weaknesses, and to defend their position to the opposing party and a open-minded but somewhat skeptical mediator. Thus, mediation is more likely to succeed than prior negotiations because the mediation process forces the parties to focus on, and prepare a hard analysis of their case.

Trial counsels are adversaries

Opponents must believe that the other side is always ready, willing and able to go to trial. Counsel often fear that a settlement proposal will be viewed as evidence of a reluctance to try the case or of weakness and a lack of commitment to the client.  Outside the mediation setting, it can be difficult for an attorney to get into a settlement mindset.   

Mediation is structured to produce agreement

Mediation allows parties to be in the same venue but in different rooms for difficult parts of the process, allowing parties to pause before responding, and encouraging them to compose their thoughts before communicating their positions to the other side.  Parties can ask questions. Parties can present hypothetical solutions without commitment. Parties can normally negotiate face to face, if desired. Parties can obtain impartial feedback from the mediator. Parties can take their time considering all viable options in a neutral and comfortable setting. The entire process assumes that, with professional assistance, reasonable and knowledgeable participants can jointly arrive at a mutually acceptable resolution of their competing interests.

Posted By:
Jay Lazrus
301-384-9579
www.raegroup.com