Why Not Mediate?

{5:20 minutes to read}

In my last article I discussed using mediation in business and personal disputes, and I discussed how to get there and some of the benefits. Below I continue the discussion, delving into some of the rewards of choosing a private venue to settle disputes—even if it turns out that court is inevitable.

In mediation, there is no formal process of discovery. And, if already in litigation, the parties may be sent to mediation before they have completed – or even begun – discovery. So what if a party feels they do not have the needed information to properly evaluate a settlement proposal, or make one?

Often times, that is not a problem. The mediator can simply ask the parties to identify the documents that they need in order to evaluate the claims and ask that the parties agree to produce them to the other side. This can be done under the cover of a confidentiality agreement, if necessary. This limited discovery is very different from the “any and all” document demands one sees in litigation. This process has the advantage of being much quicker and less costly to all parties. Further, there is no disadvantage; the truly relevant documents will have to be produced in discovery later on, anyway. After a short adjournment of the mediation to allow the parties to produce and review the documents, the mediation can pick up where it left off.

After the parties have what they need, have had the opportunity to express themselves to the other parties and to the mediator, and after the mediator spends time with the parties, separately, how do the parties eventually come together to arrive at a settlement? There is no magic answer to that; it is an organic process and, at times, the parties will not ultimately settle. However, there are features to mediation that are conducive to the parties reaching a reasonably satisfactory result.

The mediator may be able to suggest, or the parties may themselves discover, a creative settlement that they may not have ever thought of before, one that wouldn’t have come about during drawn-out litigation. Even in sophisticated commercial matters, this could allow the parties to continue to do business with each other. In matters of a more personal nature, such as in a divorce, or where neighbors have a dispute, a continuing relationship is often necessary, even if undesirable. A mediation is ideally suited to find a solution that may allow continuing relationships to happen in a way that is preferable to what would result from years of litigation.

Mediation offers the parties something else that may be compelling: confidentiality. The sessions are private and subject to strict confidentiality standards that should be spelled out at the outset. There is no public testimony or documents filed in court other than what may have already been filed, such as pleadings. The settlement agreement and its terms can, in most cases, be made confidential.

Also, mediation allows parties to fashion their own result, without “rolling the dice” and being subject to an absolute judgment of a judge or jury. The parties will know how much they may have to pay or may receive;  or how contentious issues will be determined.

How can we determine if a mediation has been successful? Certainly, if the parties settle the entire dispute, then the mediation has been successful. However, in other instances, parties may settle some claims and not others or, at the very least resolve open issues, which would allow them to focus on areas that truly are in dispute, either factually or legally. This may lead to a quicker resolution some time down the road. In those instances, I would argue the mediation has been successful.

The possibility will always exist that the other party is simply not reasonable. However, even in a situation such as that, the opportunity to vet arguments with the other side and the mediator would be helpful to a party that is planning its next steps. Even if the parties get nowhere, each party can leave a well-structured mediation knowing that they tried. If parties are being reasonable, but have made no headway, they at least have had the opportunity to assess the other side, after which they may very well conclude that they will have to prepare to go the distance in court to gain relief.

While not all cases are appropriate for mediation – the timing might not be right or specific concerns might dictate otherwise – in the overwhelming majority of disputes, mediation may provide the quickest and most cost-effective way to a resolution.

Remember: The question is not whether a case will settle. Statistics show that, overwhelmingly, lawsuits do settle prior to trial. The questions become:  when, at what stage, and at what cost (financial or otherwise) to the litigants? Actually, considering all that might be gained (and the little at risk if unsuccessful), the better question is “Why not mediate?”

What have been your experiences with mediation?


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