I was mediating a difficult case recently where the parties on both sides despaired that any outcome other than “no agreement” would be reached. With encouragement, we got to a solution, but it took some genuine effort from all the parties involved and a willingness to look carefully again at where they started, how far they had come in mediation, and what they wanted to achieve. At the conclusion, one of the lawyers made a remark to the effect that if I wasn’t a “true believer” in mediation, it was doubtful we’d have reached the negotiated outcome.
On reflection, I take this as a compliment. I am a proud mediation zealot in the world of dispute resolution! In a more serious vein, that comment got me thinking about why I am so firm a believer in the benefits of mediation (as opposed to trial or an adjudicated outcome). Here are my top three, in a nutshell:
- Mediation gives control back to the parties. In litigation, parties typically rely on their (usually) highly competent counsel to manage the process and direct the proceedings. Parties realize in mediation that they call the shots, and can decide how the matter will be resolved, without leaving the matter to a judge and/or jury. No one knows the parties’ respective facts or circumstances as well as they do. Conversely, in mediation, the parties often get bad news from the mediator reinforcing the weaknesses that counsel has previously pointed out. Hearing this information from a neutral has an impact that hearing it from an advocate never can. Litigation can be painful and mediation can lessen that burden.
- Spending issues. If litigation is expensive, trial preparation is more so. Paying for experts, preparing exhibits or simulations to explain key points, nd pure lawyer hours entails significant dollars. Once dollars are spent on non-refundable expert fees or exhibits or simulations are created, it’s difficult to claw those costs back. Focus groups and mock trials can also escalate costs rapidly. Despite the maxim that “we don’t consider the costs of defense when we determine the value of a case”, it remains true that reaching a mediated outcome typically costs less than trying a case to verdict. Potential unspent litigation costs may be converted to settlement dollars. And that’s without considering post-trial motions and appeals, and the attendant struggles that may come with collecting on a judgment.
- Flexibility and opportunity to shape the outcome. In trial, the judge or jury renders a verdict, with one side the victor over the vanquished opposition. Skilled advocates in mediation can do what lawyers do best –solve the parties’ problems. The value of achieving a personalized, unique but nonetheless fitting solution is far more robust than the simple “winner takes all” verdict model. The lack of emotional trauma inflicted on the parties in a mediation as opposed to a multi-day trial can be substantial – an aspect that may be especially important in cases where relationships are at stake.
Why mediation? There are other significant benefits, of course. These three are the ones that routinely come to my mind when parties ask me about mediation. And mediating your case with a “mediation zealot” might make all the difference.