WHAT IS THE GOAL OF MEDIATION?
Litigation is about something that happened in the past that the parties are now fighting about, whereas mediation is about resolving that dispute so that the parties can move toward a future without that conflict.
WHY IS MEDIATION IMPORTANT?
We live in a competitive society and we have become accustomed to the reality that conflicts exist in abundance in our lives. Some try to ‘avoid’ conflict all together, but sometimes that may not be a viable option. In the context of litigation, some try to ‘negotiate’ directly with their adversary, but that option is not always successful because of the challenges of concurrently acting as an advocate and as a peacemaker. Thus many attorneys prefer to ‘mediate’ their clients’ conflicts. While some disputes must be litigated through to trial, it is my experience that most do not - statistics frequently circulate in the legal community that approximately 90%, or more, of cases resolve before trial. So, mediation is an important process because it allows the parties to take control over the outcome of the case, it allows them to avoid the uncertainties of trials and jury verdicts, and it helps the parties avoid incurring further litigation costs and attorneys fees.
WHEN TO MEDIATE?
Every lawsuit has a beginning, a middle, and an end. I view mediation as one of the pivotal points in the life-cycle of a case because it permits the parties to choose the destiny of their case, i.e., whether the case is going to end, how it will end, when it will end, and under what conditions. The mediation process aims to resolve conflicts before critical mass is reached. The timing of a mediation depends on many factors, e.g., willingness of the parties, the complexity of the facts, the number of parties, status of discovery, strategy, trial dates, etc. There is no formula or schedule as to when a case should be mediated. However, it has been my experience that the likelihood of settlement at a mediation is significantly increased if all the necessary parties are in the case, preliminary discovery has been completed, and depositions of key parties and witnesses have been taken. In short, a case is ready for mediation when the parties have a firm grasp on the facts, the applicable law, and the relative strengths and weaknesses of not only their own case but that of their adversary.
WHO SHOULD BE THE MEDIATOR?
Common sense dictates that one should not consult with a physician for, let’s say, tax advice, and similarly one should not consult with a tax specialist for treatment of a migraine. In other words, in our day-to-day lives, we instinctively match our needs with the products and services that are geared best toward satisfying those needs or solving particular problems. Choosing a mediator is no different. Before you pick a mediator, review the dynamics of your case and ask whether the likelihood of settlement will be increased if the mediator is younger or more mature, a lawyer or a retired judge, male or female, evaluative or facilitative, or a general mediation practitioner as opposed to a mediator with a specialty. The foregoing are some factors that may play an unexpected role during the course of the negotiations. We are all creatures of habit and thus we often rely on our list of “go-to mediators” for every case. While most cases can be successfully handled by a skillful and experienced mediator, you should always make sure the mediator and your case are a good match. I have found the best ways to get to know a mediator that you have not worked with is speaking with the mediator, reviewing the mediator's website and online materials, and asking your colleagues for their experience.
WHO SHOULD ATTEND THE MEDIATION?
Prior to every mediation, I send an introductory email to all counsel. One of the points I relay to counsel is for them to ensure that all parties and decision-makers, including insurance representatives and/or risk managers, personally attend the mediation. It has been my experience that failure to have the right people at mediation significantly reduces the likelihood of settlement, and is often perceived by the other side as a sign of disrespect and/or disinterest in working together to resolve the case. Absence of the necessary parties could have a negative impact in the mind set of the participants, which has the potential of changing the mood and direction of the negotiations. To prevent this, I always ask counsel to inform their counterparts prior to the mediation if a decision-maker is unavailable to personally attend the mediation. In such a case, I strongly recommend that the absent decision-maker be available via phone and/or email.