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Why Mediation Often Works When Lawyers Haven’t Been Able To Settle

Mediation forces all attorneys to seriously focus only on settlement

Too often attorney settlement discussions are merely a short exchange after depositions, vaguely inquiring about whether the other party is ready to throw in the towel. And when more serious settlement discussions are held, they’re often attempts by one lawyer to see if the other lawyer is willing to modify their “best case scenario” position with obligating the inquiring lawyer to any corresponding concession. Mediation, on the other hand, requires both attorneys and their clients to jointly analyze their case, both strengths and weaknesses, and to prepare for defending and “selling” their position to a reluctant buyer and a somewhat skeptical mediator. Thus, mediation is necessarily more likely to succeed than prior negotiations were because the mediation process forces the parties to be more focused on, and prepared for, negotiation toward settlement.

A mediator’s economic incentive is settling the case

Trial counsel are compensated in different ways, and settlement doesn’t always net them the maximum fee. Moreover, in most cases, as a party prepares for the actual trial, additional expenses such as expert witnesses, etc., are incurred and passed on to the client. And even if a party’s counsel prevails, they can’t guarantee that there will not be an appeal. A mediator has no interest in having a case drag on. On the contrary, a mediator’s reputation for resolving cases, on which his or her practice depends, turns on getting the case before them resolved quickly. Thus, no matter how able one’s trial counsel, it’s often preferable to have a professional mediator to help settle the case. Attorneys have a somewhat different orientation.

Trial counsel have an adversarial orientation

Setting aside economic disincentives, it is hard for a lawyer to get into settlement mode as they are getting ready for trial. The opponent must believe that they are ready, willing and able to go to trial. There is often a fear that counsel’s settlement proposals will be erroneously viewed as evidence of a reluctant to go to trial. There is also a concern about saying anything that might be suggestive of weakness or lack of commitment to the client.

Mediation is structured to produce agreement

In most cases mediation allows parties to be in the same venue but in different rooms for difficult parts of the negotiations. This procedure allows parties to pause before responding, and it encourages each party to compose their thoughts before communicating their positions to the other side. All parties can evaluate opposing parties and their counsel. Parties can ask questions. Parties can present hypothetical solutions without commitment. Parties can normally negotiate face to face, if desired. Parties can obtain impartial feedback from the mediator. Parties can take their time in considering all viable options in a neutral and comfortable setting. The entire process assumes that, with professional assistance, reasonable and knowledgeable participants can jointly arrive at a mutually acceptable resolution of their competing interests.

Mediation puts all players on the field

The ultimate decision maker for each side is almost always at the mediation. This is a vital advantage that is often lacking during regular negotiations. This is especially the case with insurance, corporate and municipal parties. Legal counsel can, and must, deal with their clients on a real-time basis. This prevents the negotiation momentum from breaking down due to having to check with someone or something not present.

Mediation is a black box

Everyone understands that what happens in mediation is totally confidential and will not be discoverable or admissible in a case at a later point. This gives all participants the freedom to explore all possible forms of settlements and even allows them the safety of conceding weaknesses in their case. Parties will not normally share truly sensitive or confidential information nor offer an apology unless they are confident that this will be protected. Mediation is a bit like selecting a pope; the process is subsumed in the result.

Mediators are experts in the process of dispute resolution

Mediators understand the cognitive, affective, equitable and legal aspects of getting parties to “yes”. A good mediator can use their status as a neutral newcomer to the case to carefully investigate with each side the facts, interests and emotions needed to reach a mutually acceptable agreement. A mediator generally will know from experience what will work and what will not. A good mediator serves as a patient negotiation coach who can keep the parties engaged in the negotiation beyond the point at which the parties become discouraged and are ready to give up.

Mediators can confront parties in ways that their counsel cannot

Good attorneys normally know when their clients are being objectively unfair or unrealistic but confronting their client about this is a serious challenge. Mediators can do reality testing with the client without denigrating the legal ability of their legal counsel. Mediators point out to clients that approximately 95% of all civil cases are settled without a trial. They also remind clients that recent statistical studies demonstrate, at least in California, that in only 15% of the civil cases that went to trial did both parties improve their net position over pre-trial offer/demand. Plaintiffs were disappointed in a much higher rate than defendants were. Good mediators can often cause a party to base their evaluation on reality rather than on wishful thinking.


Richard Barron

Richard Morley Barron is a 1971 graduate of the University of Michigan Law School who has been engaged in civil litigation in federal and Michigan courts for over thirty years in the Flint area. He has mediated cases ordered into mediation by the courts as well as being privately retained… MORE >

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