A tough, effective, take-no-prisoners litigator should not
mediate, because real litigators don’t mediate.
The problem with this myth is that it assumes the only effective
way to resole a dispute is in trial, or worse after protracted
litigation. Clients are typically concerned with the bottom line
result and not with how it is obtained. The best litigator is
one who obtains results satisfactory to her client, and is
flexible in the methods by which those results are obtained.
A strong and effective advocate uses a variety of techniques and
skills to advance his clients’ interests. Mediation is one of
those techniques. There are many situations in which mediation
is the most effective method to advance the client’s interests.
Thus, an attorney must be alert to opportunities to utilize
mediation. For instance, mediation may allow a party to obtain
meaningful relief early enough to be a benefit or when the legal
or monetary remedies are inadequate.
Suggesting mediation will be interpreted as a sign that your case is
too weak to try.
An attorney’s willingness to mediate often demonstrates
confidence in her case because it will be exposed to the scrutiny
of a neutral party and candid discussions about its strengths and
weaknesses. Opposing counsel recognize mediation as an
appropriate and valuable tool to resolve litigation. Moreover,
once mediation commences, the “weak case” myth dissipates as
evidence clarifies the issues and the actual merits of each
party’s become clear.
Furthermore, to the extent that this imagined appearance of
weakness is a concern, court rules such as Marin County Superior
Court Rule 5 and U.S. District Court General Order #37 eliminate
any such perception by making mediation the court’s idea.
The United States District Court for the Northern District of
California has adopted a mediation program for all civil actions
filed after July 1, 1993, in five designated departments. Many
other courts either mandate or strongly encourage mediation.
On another front, many businesses and insurance carriers are very
supportive of mediation, and eager to utilize it. The Center for
Public Resources (CPR) in New York has issued a corporate policy
statement on ADR which commits the signators to use ADR before
resorting to traditional litigation. Over 600 of the nation’s
largest companies, and 1,800 subsidiaries, have signed the
You should also be aware that most major businesses and insurance
carriers are very supportive of mediation, and eager to utilize
David Mulford, Senior Counsel for Bechtel, characterizes the
weakness myth as “antediluvian” thinking. He states that if
plaintiff’s counsel suggests mediation, he views it as a sign of
enlightened thinking. He is not at all concerned about the
negative inference from suggesting mediation himself.
Finally, if you are concerned about an implication of weakness as
a result of suggesting mediation, you can try one or more of the
following approaches. First, when you have your first contact
with opposing counsel, you can explain that it is your firm’s
policy to refer most cases to mediation. Second, you can allow
the mediator to try to get the other party to the table (“process
negotiation”). Most mediation providers offer this service and
will usually succeed in obtaining an agreement to mediate.
Finally, when appropriate, you could indicate that the opposing
party is a signator on the CPR policy statement, as discussed
In Mediation, I will be coerced or badgered into settlement or
face a “split the difference” approach.
You are in control in mediation, a coerced settlement can not
happen because the entire process is voluntary. The decisions to
enter mediation, to remain in mediation, and to settle are in
your control. You may terminate mediation at any time you
choose. The mediator has no power to compel a settlement.
Furthermore, because the resolution emanates from the parties,
not the mediator, a capricious “split the difference” approach
cannot occur. The number (or solution) agreed upon is the result
of a principled, considered, and informed process, not coercion.
Release of information in mediation will jeopardize my case.
Pursuant to Code of Civil Procedure Section 1152.5 the statements
made in mediation cannot be used in Court. Further, the parties
can stipulate that the proceedings will be kept confidential.
Each attorney and her client are in complete control of what
information is released or divulged and the timing of such
disclosures. The attorney can make the same tactical decision
concerning the release of information she would make in a
settlement conference or in any other settlement negotiations.
However, in mediation the attorney has the added advantage
through the use of private meetings with the mediator of being
able to strategically control the timing and release of
information and settlement authority.
Some attorneys also believe that their cases may be jeopardized
from an evidentiary standpoint in the event they do not
successfully resolve those cases in mediation. This should not
be a concern. Pursuant to California Evidence Code Section
1152.5: “…when persons agree to conduct and participate in a
mediation…Evidence of anything said or of any admission made in
the course of the mediation is not admissible in evidence or
subject to discovery, and disclosure of this evidence shall not
be compelled, in any civil action…[N]o document prepared for
the purpose of, or in the course of, or pursuant to, the
mediation,…is admissible in evidence or subject to discovery,
and disclosure of such a document shall not be compelled, in any
Similarly, General Order 37 of the United States District Court
for the Northern District of California, X Confidentiality,
prevents the statements made in mediation from being used in
evidence. Other courts may have similar provisions.
I’ve got a “sure winner,” therefore, mediation is unnecessary.
Even a “sure winner”, if there is such a thing, is more expensive
and time consuming to litigate than to settle. If it is in fact
a strong case, you should be able to obtain a favorable
settlement quickly. Conversely, if your case is weak, you have
the opportunity to explain the reality of the costs and time
required for the opposing side to obtain relief.
Furthermore, your client will be “educated” by the mediation
process and, perhaps, become more realistic about her case. By
mediating and settling the case early in the proceedings, there
will be more dollars available for settlement, creating the
optimal situation for all parties.
Mediation will be a waste of time if: opposing counsel is
difficult; incompetent; has an unrealistic attitude towards
settlement; or has accepted his client’s unsupported story.
(a) Because mediation directly involves the opposing party as
well as the attorney, it often overcomes intransigence to
(b) Mediation addresses these concerns by providing a forum for
“reality testing” and evaluation of other positions.
(c) The mediator can help an unrealistic party transition from
telling his story to becoming more realistic about the
merits of his case.
Mediation will be a waste of time and money if the case does not
Most mediated cases settle. Even in those that do not, much
can be accomplished. Often the parties will agree to narrow
issues and/or parties, and otherwise streamline the case.
Similarly, the parties may develop an agreed-upon discovery
plan to further simplify the case. In addition, parties
often report a heightened awareness of the strengths,
weaknesses, and subtleties of their case. Finally, after
mediation counsel for all sides indicate that they often
obtain greater support from their client, as they prepare
for trial. The clients have seen the attorney’s efforts to
settle and recognize the necessity of trying the matter.
The use of mediation will reduce my income.
Creating satisfied clients through the use of mediation is
one of the best ways to retain and attract clients and
thereby increase your income. Client satisfaction is
enhanced by the use of mediation not only because the
dispute is resolved more quickly and more economically, but
because the client plays a more active role in the process.
Knowledge of and judicious use of mediation and other
alternative dispute resolution techniques may, in fact,
increase your client following. Joseph H. Flom, partner of
Skadden, Arps, Slate, Meagher & Flom noted in The
Integration of ADR into Corporate Law Firm Practice, Dana H.
Freyer, Arbitration Journal , December, 1990, that: “[a]s we
enter the 1990’s, ADR expertise is an essential component of
the package of services that a corporate law firm should
provide its clients.” If your firm does not provide
critical services such as mediation, clients will utilize
other firms who do. Howard Golub, general counsel for PG&E
has made it clear to the attorneys PG&E retains that their
performance would be evaluated in part on the basis of how
or whether they utilize mediation. See, The Wall Street
Journal, Mediation Firms Alter the Legal Landscape, March
22, 1993, p. B1.
David Mulford, Senior counsel for Bechtel, reports that
Bechtel’s Outside Counsel Guidelines requires counsel to
submit a case analysis indicating whether the case is
amenable to mediation and other forms of ADR. However, he
notes that the sophisticated counsel Bechtel employs are
aware of the advantages of mediation. Similarly, Fireman
Fund’s procedures for Panel Counsel require that ADR,
including mediation, be considered.
Walter Wriston, former CEO of Citibank offers excellent
advice on this point: “As a businessman, if I don’t listen
to the market, I’m not in business. If I were an attorney,
I’d make sure I was involved in alternative dispute
resolution, because it may well be the service that the
market will demand and I’ll have to offer in the future.”
Similarly, Mark Mazzarella, the immediate past Chair of the
State Bar Litigation Section, suggests that “Lawyers…may
need to be prodded by clients who openly announce that they
only retain lawyers who employ creative ADR solutions.”
See, California Litigation, Spring, 1993, Vol. 6 #3, p. 2.
Abraham Lincoln perhaps summed it up best a century and a
half ago: “As peacemaker, the lawyer has a superior
opportunity to be a good man. There will still be business
Reprinted from the Newsletter of the Litigation Section of the State Bar of California. Vol.4 No.2. Spring 1994