Mediation Gets New Look
Kegler Brown Litigation Newsletter May 1, 2008
Lawyers are in the business of resolving disputes. Through their lawyers, warring parties reach a resolution in a host of ways, from entering agreements to a full-blown trial. Given the high cost of most trials, renewed attention is being paid to "alternate dispute resolution" techniques like mediation.
Mediation is pretty simple and straightforward. A third party, the mediator, meets with those locked in a dispute, and their lawyers, with the purpose of bringing the parties together in order to reach an agreement that ends the fight. Mediators can be volunteers through the courts or paid for what can be a most valuable service. Either party can ask the other to participate. A court can ask litigants to participate. During a mediation session, the parties may reach a voluntary agreement--or not. The mediator cannot force anything and so nothing is final or "binding" about mediation unless the parties reach a deal.
Mediation may have the advantage of settling a case early and thus the parties can avoid the expense of litigation. Plus, mediation can be a tool to manage a risk by determining a certain figure as opposed to leaving that decision to a judge or jury or arbitrator. A potential disadvantage is that mediation usually requires some give and take on key points and this means that you will educate your opponent. But, the rewards of settlement often outweigh such concerns. And, eventually, you want or have to educate your opponent and so the biggest issue may be figuring out when it is best to schedule mediation. Sometimes that education comes from litigation and so parties need to exchange documents and conduct depositions in order to know enough to be ready to mediate.
Mediation requires a willingness of both parties to make concessions--it takes two to tango. If you are not truly interested in a compromise, don’t bother. Also, don’t bother if you believe that your adversary is dead-set against settlement.
Before mediation, think about alternate outcomes that are acceptable to you and develop an opening position and bottom line. Put together your best arguments to share with both the mediator and the other side. Engage the mediator to help persuade your adversary. Likewise, ask the mediator for insights into the strength of your opponent’s case and convictions. Come ready to listen for those things that matter most to your opponent.
The mediator makes a big difference. Some are trained in mediation, many are not. Some are good at what they do, some are not. A wise choice is a mature and skilled lawyer who has spent years working through disputes, knows the specialized area of the law at issue and appreciates the subtleties of the art of compromise. Our firm maintains a number of trained mediators in a host of specialized areas of law, including construction, employment, insolvency and business.
Here is my bottom line: mediation with a high-quality mediator is usually well worth the time, effort and expense.