Although I am now a full-time mediator and arbitrator, until recently I was also a litigator. For over 30 years, I explained the mediation process to clients in order to persuade them to spend their time and money on it. Clients often questioned how another attorney or a retired judge who would not know the facts of the case as well as they did, and might not know the specific law which applied to the case as well as I did, could sweep in and settle the case in a day or so. It always struck me that my explanation made mediation sound pretty simplistic.
There are thousands of articles about how mediation works. There are also thousands more articles regarding best practices for mediation – from the perspective of the mediator, from the perspective of the plaintiff’s counsel, and from the perspective of the defense counsel. There are few articles, however, regarding why mediation works. I believe the primary reasons mediation works are:
1) Generally the parties have all agreed to participate in the mediation – which might be the first time they have agreed on anything.
2) The parties and their attorneys are all together in one place (which these days, may be a virtual “place”). Prior to a mediation, any discussions involving settlement were either only between the parties, only between the attorneys, or between the parties and their own attorneys. (Although the parties are usually kept in separate rooms during at least most of mediation, they are still generally all in the same office.)
3) Often, by the time the case gets to mediation, the parties have gotten a taste of how the legal system works and may even be disillusioned by the process, and are therefore more amenable to resolving the case than they were at its start.
4) Coming to a mediation and having a mediator listen to them may make parties feel like they have had their “day in court,” which allows them to release the conflict and seriously consider settling. I have attended mediations in which I represented one of the parties, and the mediator wanted to talk only with the attorneys, ignoring the parties. While this may be a faster way to get the information, those cases usually did not settle. Mediation works better when the parties are actively involved.
5) Sometimes parties need to believe the other side is sorry. Although many defendants will refuse to provide an apology, in the right case an apology can go a long way toward settling. Even having the opportunity to tell the opposing party how you feel can be quite cathartic. I had one mediation where it was clear the plaintiff wanted to tell the defendant how he felt, but I did not believe this would be well-received by the defendant. Instead, the defense counsel stood in as proxy for the defendant, and the plaintiff told the defense attorney how badly he had been treated and how mad he was. As planned in advance, the defense attorney said practically nothing in response. Shortly afterward, the case settled.
6) A court is generally limited to ordering one party to pay money to the other party or, once in a while, granting injunctive relief. Mediation, on the other hand, can involve non-monetary solutions, or a combination of monetary and non-monetary solutions. For example, in a mediation between neighbors which I once did, it turned out one of the neighbors was a real estate broker, and the other neighbor really didn’t want to stay in her house, so the real estate broker neighbor purchased the other neighbor’s house. (Although this solution involved money, it was not simply a matter of one party paying the other party money in exchange for a release.) Business litigation cases are often ripe for creative resolutions. In an employment case, at least part of the solution may be for the employer to give an employee their job back, to offer an employee a promotion or reassignment, or to offer to terminate or transfer a harasser.
7) In situations where an attorney has been less than successful in convincing their client of the weaknesses in the case, having a neutral person explain the weaknesses to the client may be quite advantageous – especially when the neutral person is a seasoned litigator or retired judge.
8) Parties can make conditional offers at the mediation. For example, a mediator can ask a plaintiff, “If I could get the defendant to pay [a certain amount], would you take it?” or ask the defendant, “If I could convince the plaintiff to settle for [a certain amount] would you agree to pay that amount?” (The use of “brackets” is a more structured use of conditional offers which some mediators favor.)
9) Mediators can also do a more formal conditional offer, called a mediator’s proposal. A mediator’s proposal is a settlement proposal that the mediator makes to all parties, and each party is requested to accept or reject it, on the exact terms proposed, in a confidential communication to the mediator. If one party says “yes” and the other party says “no,” the one who said “yes” will not be prejudiced if settlement negotiations (or subsequent mediations) occur at a later stage of the litigation. Mediator’s proposals must be used judiciously, and only at the end of the mediation, however, since it is extremely difficult to resume negotiations after a failed mediator’s proposal.
10) Assuming a settlement is reached at the mediation, since everyone is together, the settlement agreement or at least a memorandum of agreement can be signed right then, eliminating any back-sliding after the parties leave the mediation and start discussing the settlement with family and friends who do not know all the facts.
While I am sure there are other reasons why mediation works, I believe these are the main ones. Attorneys – Please feel free to give this article to your clients if you find you are having difficulty convincing them of the benefits of mediation.
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GAYLE ESKRIDGE may be contacted by phone (310/303-3951 or 916/898-1469), or by email (firstname.lastname@example.org). For more information, please visit www.eskridgelaw.net.
This article does not constitute the provision of legal advice, and does not by itself create an attorney-client relationship with Gayle Eskridge.