Compromising Your Way To Victory: Mediation May Offer An Alternative Path To Success

By Heather B. Lee

Published in The Daily Journal of Commerce, July 9, 2010

Due in part to the tough economic climate, the cost of litigation is, in many cases, rising. At the same time, many courts' resources are being cut by cash-strapped states. As a practical matter, this means that litigation – already criticized as a lengthy, expensive process – can take even longer and cost even more than parties originally expect.

One approach to minimizing the time and expense of litigation that every party to a lawsuit should consider is whether the case can be resolved through mediation. Although pre-trial mediation does not guarantee settlement, with some forethought and preparation, mediation can resolve even cases you might think are beyond compromise.

With that in mind, here are a few tips to help maximize your results in mediation and, with any luck, make a difficult and expensive process a little easier.

1. Time your mediation wisely. Are the parties disputing what happened, or the effect of what happened? Does the case turn on discovering and interpreting the facts, or on how the law applies to known facts? In cases where the facts are fairly well-established, parties may want to mediate early in litigation, before conducting discovery. Discovery can be time and fee intensive, and it may not be necessary to resolve your dispute.

2. Select your mediator wisely. Mediators come in all shapes and sizes: lawyers, non-lawyers, current and former judges, and those with industry expertise. If the litigation you're involved in deals with specialized issues – construction claims and processes, for example – you probably want a mediator with a background in the subject matter or issues at stake. Such background enables the mediator to quickly get up to speed on the issues in the case. It also allows the mediator to confidently evaluate the relative strength of the parties' legal positions, and convey that to the parties as they negotiate. Different mediators also have vastly different approaches to communicating with and between the mediating parties. Some mediators' approach may be better suited to the parties involved in your case than others.

3. Use mediation as an opportunity to honestly evaluate your position. Prior to mediation, parties often submit to the mediator (and, sometimes, to the other side) mediation statements. These statements typically highlight the strengths in your own case, along with the other side's weaknesses. The preparation of a mediation statement is an excellent time to sit down with your attorney, assess the strengths and weaknesses of your position, and discuss what it will likely cost to see the case through trial versus the likely cost of settlement. Even the strongest case might be worth settling, if settlement can be had for less than the cost of litigation.

4. Go into mediation with an open mind. Just because your opponent submitted a hard-line mediation brief with an astronomical settlement demand does not mean that there is no chance of mediating the case to a reasonable resolution. Attorneys and clients may have their reasons for playing hardball before backing down to a more reasonable negotiating position. Be patient.

Even when mediation does not result in settlement, mediation is rarely a wasted effort. The work that goes into preparing for mediation is excellent preparation for trial, and the mediation itself can give you an excellent sense of your strengths and weaknesses, as well as those of your opponent.