Why Mediate?

Meet Douglas Daum, one of BAY’s newest mediators. In this post, Doug explains why mediation can serve as an amazing tool, especially during this time.


“I have been an attorney for almost 44 years. I am starting a new chapter in my life as a mediator, and have been spending a lot of drive time musing about why someone should mediate their case.


 1.  It is likely that a jury trial will not occur for one to three years


Perhaps the most obvious, and immediate reason, due to the COVID shutdown, it is likely that a jury trial will not occur for one to three years. Jurors may speculate why a case is five years old and has not been resolved, and being human, speculate “why” for reasons that may be harmful to either side of the litigation. Witnesses and clients may move far away, memories fade. Unfortunately, witnesses and clients may die, have a subsequent injury, or accident, clouding issues. Divorce clients do not like being in limbo, and “limbo” is harmful to children of a divorce. Contract disputes remaining open may mean a business may not survive without a resolution, because of an interruption in, revenue and uncertainty about who is in control.


2. The time value of money, to both parties.


The time value of money, to both parties. I had a defense attorney say to me that he had seen a former client, whose case was settled after a mediation , the “green poultice” surely did work for my client. Relieving financial pressures and demands for a client, now, not 3 years from now, not only aids in healing, it means that divorce clients, their children, have uncertainty removed from their lives. Medical bills are resolved today, and likely more cheaply. “Green Poultices” should be applied earlier, not later.


3. Mediation gives your client a voice.


The Travis Tritt song,” Here’s a Dime, Go Call Someone Who Cares”, sums it up. ” Getting it off their chest” leads to resolution.

Judges do not have the time, and often the patience. to allow a party to vent. Venting at first, often allows a client to get down to business, and get a case resolved. Mediation allows a client to feel they have some control over their future, and case.


4. Your client expects you to be on their side.


They expect the other counsel to not be on their side. A good mediator can bring the “what ifs” or “how abouts” as part of an inquiry, both as a novel path to resolution, and as a neutral that is stimulating thought about the strength and weaknesses of case and then reality testing is done by a neutral mediator, not an advocate.


5. Your client gets “humanized”


There is a disturbing trend to fit or cram opposing parties into some sort of computerized model, based on second hand reports, or and the observer’s biases. I am guilty of prejudging someone, and being badly wrong. The older gentleman I met in the beaten up red baseball cap, overalls. and work boots, that proceeded to tell me his business was “cracking” electronic safe combinations, and the septic tank repairman that told me he had a Masters in Philosophy, and quickly lost me when the conversation turned to Hegel, come quickly to mind. Mediators do their best to and are trained to ignore their biases.” “The one place a man ought to get a square deal is in a courtroom, be he any color of the rainbow, but jurors have a way of carrying their resentments right into a jury box” Atticus Finch.


6. “Cheap Discovery”


Even if a case does not get resolved, you get to hear from the other side of the litigation, see what “makes them tick” and get independent observations of why your case is good, and why “it stinks”. Attribution to Jim Stewart, my fellow mediator at Bay Mediation.


7. Once a Jury renders a verdict, any reconsideration is left up an appellate court.


In a mediation, the door for reconsideration can always be left open, for everyone’s reconsideration.( Attribution to Bruce Barrickman, my fellow Mediator at Bay Mediation.) Bruce stays available, gratis, to continue and gives parties, and lawyers time for reflection, and based on personal experience. this works. Bruce gets the discussion reignited. Speaking as an attorney, this approach eliminates the risk of appearing like you are “caving”, and raises the likelihood of a good resolution.


8. Mediation can be the best preparation tool for a litigator.


Mediation can be a much cheaper, “mini” focus group. Mediation also can be much cheaper when it comes to getting expert witnesses in front of the opposing party, (on paper) without the expense a video deposition, or a live appearance, and you do not have to deal with those “pesky” rules of evidence.”


Learn more about Douglas Daum.