Why Mediate?

{5:20 minutes to read}

Mediation is growing in popularity and use.

Many parties in disputes are now including “step” mediation provisions in agreements, and many courts have created mandatory automatic mediation programs. Still, some attorneys and parties question whether mediation works and whether it is desirable.

If one looks at the facts, however, it cannot be disputed that mediation does, in fact, work. Court-annexed mediation programs have been implemented in many courts, ranging from Small Claims to State and Federal courts. The success rates have been impressive. Yet some still question whether it would make sense to go to mediation rather than just forge ahead with arbitration or litigation.

When a dispute arises, especially if it has ripened or the parties may believe it will soon ripen into litigation (usually when it involves significant issues or dollar amounts), the parties will “lawyer up”; and in so doing, they will look for seasoned lawyers who will represent them forcefully and, often, aggressively. That is how it should be; our system is, by design, adversarial. And lawyers get it.  

As someone who has worked as a commercial litigator for almost 30 years, I know that, even if my client wishes to settle the case—and the sooner the better—I must always act and prepare with the view to winning the case at trial, if it goes that far. After all, it takes (at least) two parties to settle.  However, preparing to win a case at trial does not have to be inconsistent with looking at it objectively and putting the client in position to arrive at a resolution that is reasonable, sooner rather than later.

Most parties prefer to negotiate from a position of strength, and rightly so. Some attorneys and clients believe that suggesting or agreeing to mediation is a sign of weakness. This used to be a prevalent concern some years ago, but increasingly, sophisticated attorneys and parties understand what mediation is, and do not view proposing it as a sign of weakness. Of course, the existence of a “step” mediation provision in an agreement, or the mandatory court reference of a matter to mediation, does away with this concern.

So why mediate, if given the choice? How does one best use mediation if directed to? Most attorneys attempt to review the strengths and weaknesses of their cases with their clients in an objective manner. It is sometimes the case, however, that an attorney may not be able to “get through” to his client—or the attorney may even “fall in love” with the case and, after some time, not look at it objectively anymore. In those cases, mediation provides a forum where a neutral third party can encourage all parties to communicate with each other, explain their positions, and, often in caucus, do reality testing so that the strengths and weaknesses of all parties’ cases become apparent. Very often, this will help to sharpen the issues and bring to the fore all of the potential risks and rewards of settling or not settling, in a far more realistic way than was perhaps done earlier.

Mediation may also help drain the emotion that is often present in contentious cases, which, while often understandable, can stand in the way of objective, rational decision-making.  Mediation may be the first opportunity for the parties to see each other face to face since the inception of the dispute; they will have an opportunity to express themselves, say what they think needs to be said, and to hear the other party do the same. With that out of the way, the parties may be ready to settle. Or at least talk.

Do you have a mediation clause in any of your contracts?

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