Many attorneys, and certainly those that have spent much of their careers without the relatively new benefit of mediation as an alternative to trial, often proclaim that mediation is a waste of time. Whether the parties are too entrenched in their positions, or if they simply feel like they will achieve a better result at trial, many litigators simply just look at mediation as a “checked box” on the journey to trial.
But just like the public perception of so many things is often misguided, the “why do we have to mediate” perception is also imprudent. Some of the benefits listed below will be readily apparent to people that routinely use mediation as an effective pretrial tool, but they can also be enlightening to both the seasoned litigator and the newly minted associate:
1. Mediation effectively gives both parties their “day in court,” without having to step through the hurdles—and ever-increasing costs—to get there.
As a real-world example, I was recently involved in a mediation where the parties were extremely far apart, and the Plaintiff was moving towards walking away from the negotiation. Instead of giving up completely, I pulled the Plaintiff aside and literally said: “Tell me more. Tell me about what you’re feeling, and what you’ve been through.” The Plaintiff then spoke to me for about 30 minutes and I quickly realized this person just wanted to be heard. They simply wanted someone to listen to them without any judgment or bias, and in a setting that felt comfortable. We were able to resolve the case shortly after this “therapy session” with the Plaintiff, and both parties were satisfied with the result.
2. The level of control that the parties have at mediation will likely not be realized again on the path to trial.
Both parties at mediation are directly involved with negotiating their own agreement, and there are no outside influences—judge, jury, or other—that can dictate settlement terms. This is another item that I like to explain to parties early on, so they feel like they not only are having their “day in court,” but they (and not the attorneys involved) know they also have absolute control over any potential settlement.
3. At mediation, parties are able to give 100% of their focus to the particular case or claim and aren’t focused on other day-to-day matters.
This is a point I often make in my opening statements, especially to Plaintiffs that have typically not been exposed to the mediation process before. I explain how mediation is the time in the case when all of the most important people are in the room, together, and that scenario will never happen again, even at trial. The people in the room are also the people that have the most knowledge on the case, from both plaintiff and defendant perspectives, and will ultimately decide whether to drive the case on or resolve it without any additional costs incurred.
4. Through reality checks, parties are able to recognize blind spots in their cases that weren’t readily apparent before mediation.
There is no question that it is absolutely paramount for both parties to use mediation to view their respective case in a different light. I even think of it as a free “focus group” that the parties receive info from. And from my own litigation experience, it’s easy to throw the blinders on while hiding behind the guise of “zealously advocating” for a client. Unfortunately, by the time the parties get to trial, critical thinking skills have gone by the wayside, and winning is all that matters. (I sadly have experience with this too!). Mediation is a way for these blinders to be eschewed for more focused, role-reversing analyses of cases, without worry of being completely blindsided later at trial. And while the reality check process doesn’t always lead to an immediate resolution, it can definitely help parties on a path towards settlement.
Part of what makes mediation successful is the ability of the mediator to effectively convey these benefits to the parties early on, sometimes even before the mediation. And while attorneys are undoubtedly effective at advancing the interests of their clients, they often haven’t engaged in any meaningful settlement discussions or negotiations prior to stepping foot into a mediation. This is perhaps due to posturing, or each attorney’s respective pretrial strategic plan, or even just being set in their ways of “zealous advocate” behavior. Be that as it may, there is absolutely no question that mediation is not only beneficial to all parties involved, but it will also continue to be used by parties and courts to resolve disputes well into the future.