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Why Mediate at All? Can’t We Just Work It Out?

From John DeGroote’s Settlement Perspectives

If you haven’t heard the old-school pitch, you will someday soon:  “I remember when lawyers actually talked to each other.  We don’t need to mediate this case; if it can be settled, you and I can work it out the way good lawyers used to.“ 

Although direct settlement talks can be cheap, quick and fun, there are reasons why mediation is as popular as it is.

In their inaugural post, Practical Dispute Resolution asked: “If the parties can’t agree, how can a mediator help?”   I’ve settled cases in about 20 states, both as a client and as counsel, with mediators and without them.  So I have my perspective on why mediation often works when direct negotiations don’t.  The top 7 include:

  1. It’s not the mediator; it’s you.  What old-school settlement proponents forget to mention is that face-to-face settlement talks are often a quick chat at the elevator after a bad deposition:  “You guys thinking about settling this thing?”  “Nope.  Not so much.” And when traditional settlement discussions are more involved, they’re often simple attempts to see if the other side is willing to discuss settlement, with little at risk and clients out of earshot. But mediation, which by definition involves clients, requires some degree of preparation and advance thought about reasonable settlement ranges, positions, and (hopefully) more.  So in my book, even before the mediator shows up your mediation will have a higher chance of success than face-to-face talks — because you make it better.
  2. Mediators have one economic incentive: to settle your case.  Trial and litigation counsel can be compensated in different ways, and I don’t need to tell you that settlement usually doesn’t net them top dollar.  Most of the time, outside fees increase as a dispute gets to and through trial. On the other hand, your mediator has no interest in your case lasting one more day.  I’m a big believer in the alignment of economic incentives; your mediator’s reputation for getting cases settled — which is how he’ll get the next case in the door — hinges in part on getting your case done.  Thus, no matter how much I trust my trial counsel, I’d rather ask someone who settles cases for a living to settle my case.  My trial lawyer has a different job.
  3. Money aside, your trial lawyer still has a different job.  Let’s set aside the economic incentives for the moment — think, do you want to ask your lawyer to get into settlement mode as trial approaches?  Do you want the other side to perceive your trial lawyer as conciliatory?  When your trial lawyer visits with the other side to discuss settlement will she be able to resist scanning the conversation for angles, arguments and openings to use at the next deposition? Does she really want to settle at all?
  4. The physical setup.  In most cases mediation allows parties to be in the same location but in different rooms for difficult parts of the negotiations; this allows participants to pause before reacting, and it encourages each party to compose their thoughts before communicating their positions to the other side.  Whoever said “give good news in public, give bad news in private” knew something about mediation.
  5. The participants.  As Christopher Annunziata puts it, “The Decider” — the decisioinmaker — should be at your mediation.  This is a big help, since it’s hard for people who don’t have the authority to settle the case to settle the case. 
  6. Mediation confidentiality is important.  Different jurisdictions have different rules on mediation confidentiality, and the First Mediation Blog and Settle It Now Negotiation Blog regularly update the law on mediation confidentiality.  At a high level you can assume that facts outside of mediation are discoverable, but what you say in mediation usually won’t be discoverable or admissible in your case at a later point. As a party, confidentiality is important to me; when I need to offer an apology or confidential data, I’d like to know for sure that my discussions are truly protected.  A formal mediation gives me that comfort.
  7. Mediators know setlement.  Mediators settle cases for a living, and they leverage their experience to get your case settled — nothing more, nothing less.  A good mediator can use her status as a neutral newcomer to the case to carefully and credibly probe each side for the right combination of facts, interests and emotions to get to a deal — she knows from experience what will work and what won’t.  As the process drones on and attention spans begin to wane, a good mediator will keep the parties engaged far beyond the point at which they’ll want to “Cut to the Chase” so they can make the early flight home.

If your next settlement is important, there are good reasons to pay a professional to help get you there.  You’ll be glad you did.



John DeGroote

John serves as a mediator and arbitrator in complex business, technology, and intellectual property matters involving parties and interests around the country and beyond — often before litigation is filed. Prior to his service as a mediator and arbitrator, John served as the lead settlement negotiator in hundreds of cases,… MORE >

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