Mediation can either be a great tool to move beyond an impasse or a colossal waste of time and money. Without the proper approach and preparation, the parties may be pushed further apart.
In a recent mediation, my client was amenable to settling but the plaintiff, in the lead-up to the mediation, was less than forthcoming. He led me to believe that he was looking for a number to settle at less than six figures. Based upon this understanding, my client agreed to mediation. Of course, we prepared our submission for the mediator (as did the plaintiff’s counsel who was foolish enough to also exchange it with our office) and attended with the goal of resolving the case.
Surprisingly, the plaintiff’s counsel increased his prior settlement demand and then acted indignantly when the offer presented was, in his mind, inadequate. The mediator was clearly on our side when it came to valuation but quickly saw that he could not reason with the plaintiff’s attorney. In an unbelievable move at the close of the mediation, he had a parting and insulting shot directed at my clients who sat in on the process – not a good strategy unless you want a trial. Needless to say, the case did not settle and moved from a reasonable offer to no-pay and we are moving toward trial – not the desired or expected result.
Our office moves a case into mediation only when there is that glimmer of hope for a resolution. Without a clear demand and offer, it is impossible to adequately assess the likelihood of success, and I believe mediation should be avoided in those circumstances.
Remember, mediation is a tool to avoid trial in an effort to resolve matters reasonably. Do not expect your lawyer to be as aggressive at mediation as he or she was during the discovery phase or as you expect him or her to be at trial. If an attorney enters mediation looking to win, everyone loses. We want a good and acceptable result but the approach is different than the slash and burn tactics often used at trial.
If we suggest mediation it is not because we do not want to go to the mat; in fact, at the stage of entering into mediation, we are at the point of being ready for trial. We want to go to mediation to avoid the uncertainty of trial and try to economically resolve the matter before fully preparing for a long and costly trial. When we are prepared and the parties are close enough to make it worthwhile, mediation is almost always a success. It is at times better to mediate than go through the expense of trial preparation, paying experts, and putting your fate in the hands of a group of unknown people.
When approached in the proper way and when one is fully prepared to engage in the process, mediation can be very cost-effective while at the same time giving the client the benefit of a final resolution. Sometimes it merely results in bringing the parties much closer together which in and of itself is beneficial, as this sets up the parties to continue to negotiate while the trial is approaching.