10 Reasons to Mediate Your Case – Other than Settlement
There is a common belief that the only reason to schedule a case for mediation is to get it settled. This belief makes sense as a high percentage of cases do settle at mediation, and guiding parties toward resolution at mediation is the goal of any neutral.
However, there are a number of very positive things that can be achieved at mediation that don’t involve settlement. In this article, I will discuss the top ten ‘non-settlement’ benefits that can occur at mediation.
1). The mediation session affords the opportunity for an experienced neutral to listen to your view and then provide a fresh perspective. An experienced neutral has mediated and arbitrating thousands of cases, and they make it their business to know how juries are reacting to cases. Also, most mediation firms keep data on cases their neutrals mediate. At Miles, we share this information with our neutrals at our quarterly meetings. As a consequence, our clients not only receive the benefit of the individual neutral’s thoughts and observations, but what our data reveals about current trends. A client armed with this information may choose to change their evaluation or modify the way they decide to present their case should it have to be tried.
2). The mediation session allows you to learn what your opponent believes about their case, what they will argue at trial, and the evidence they will present. Most attorneys are good at guessing what their opponents are thinking and how they will present their case. However, it’s not unusual for me to hear attorneys say that they learned something new about their opponent’s position at mediation or that they gained a new perspective. Often the mediation is the first opportunity for the insurance adjuster/corporate representative has to meet and hear from the plaintiff. Conversely, it is typically the first chance the plaintiff has to hear directly from the defense. Of course, these revelations won’t always change the way you value a case, but it’s still beneficial to learn what your opponent is thinking.
3). Most clients trust their attorneys and wisely listen to their opinions about the case. However, there are occasions where attorneys find themselves at odds with their clients, and these attorneys find themselves in the unenviable position of having to advance a position that is likely to fail at trial. No attorney wants to argue or disagree with their clients. The mediation session allows the neutral to be the ‘bad guy’ and tell the client things they don’t want to hear. I’ve witnessed many instances where clients’ minds are changed, and cases resolve. In those instances where clients remain defiant, the attorney gains ‘political cover’ so that if the case does go south, the client can’t say they weren’t put on notice.
4). Many lawsuits arise from tragic circumstances. An individuals life was turned upside-down in an instant by something that wasn’t their fault. It’s understandable that these people are angry and demand to be heard. Indeed, these individuals won’t move on to problem-solving until they have had the opportunity to confront the one who harmed them. The mediation session is the only opportunity the emotional plaintiff will have to sit across the table from their opponent and be heard. This moment is one of the main reasons that mediation is often successful. After the aggrieved individual has had their say and been acknowledged they are ready to move on to discussing resolution. Even in instances where a case doesn’t resolve at mediation, the fact that the plaintiff has been heard sets the stage for resolution in the future.
5). One lament I hear consistently from attorneys is how contentious the practice of law has become in recent years. There are many reasons for this change in climate, but I believe that one of the main reasons is the increased use of email. When I began practicing law, attorneys often met in person to discuss issues, and one of the highlights of my week was attending calendar calls. Today most communication is conducted electronically, and there are fewer and fewer opportunities for in-person meetings. It’s more difficult to be combative when you are face to face with your opponent.
The mediation session is one of the few times, if not the only time during litigation, that litigants are required to sit across the table from each other with the common objective of reaching a compromise. When I was actively mediating, I would tell parties that one of my goals was to ensure that they would leave the mediation better off than they came. Of course, the object of the exercise was to settle. Still, in the instances when that didn’t occur, I was often successful in lowering the level of animosity and putting the parties on a path toward an eventual resolution.
6). Just because the parties can’t agree on a final solution doesn’t mean they can’t find areas of agreement and construct a plan for going forward. Sometimes parties come to mediation with opposite views of the case. An experienced neutral can help parties to understand why they see things differently and suggest ways to bring the parties together. For example, the plaintiff’s attorney may believe that surgery was related to an injury sustained in an automobile accident. In contrast, the defense attorney may see no causal link between the accident and the claimed injury. The neutral could suggest the parties meet together with the treating physician to discuss the matter. I recall one mediation I conducted where we were able to get the physician on the phone at the mediation. After the call, the parties, armed with a clearer understanding of the doctor’s opinion, were able to resolve the case
7). When it becomes apparent that the parties won’t be able to reach a settlement and that there is little prospect of a resolution short of trial, the parties can use the mediation session to agree on a high low agreement to reduce uncertainty at trial.
8). If the parties aren’t able to reach an agreement to resolve the case, they may agree to utilize another form of ADR like arbitration. Arbitration allows the parties to end their dispute with a significant savings of time and money. It also ensures that an arbitrator will decide with substantive knowledge of the matter in dispute. This process is often preferable to leaving the outcome to 12 jurors with little knowledge or interest in the case.
9). At trial, all a jury can do is return a monetary verdict. They can’t craft a creative solution. At mediation, the parties have the freedom to find a solution that doesn’t necessarily involve money. I’ve facilitated many mediations where an apology from the defendant was an essential part of the settlement. Other mediated agreements have involved commitments on the part of the defendant to take corrective actions to prevent future incidents. Of course, if a monetary settlement is reached at mediation, the parties can structure the payout to minimize tax consequences.
10). Most cases settle at mediation; however, if a case doesn’t end at mediation, that doesn’t mean it won’t settle. One of the main benefits of mediating is to obtain the services of a neutral who will continue to work with the parties after the mediation to ensure a successful resolution.