Written by Galen T. Shimoda and Kristin LaRoi
Mediation is a process in which the parties hire a third-party neutral, such as a retired judge or an attorney, to settle and dispose of the case. The parties then spend a full day or a half-day with the mediator. The mediator then goes between the parties, learning about the case. An experienced mediator will look for strengths and weaknesses of each party’s case and arguments. Using these strengths and weaknesses against each party will typically help both parties compromise on the settlement number. The back and forth communication can be long and tedious but this is part of the process.
It may be somewhat unrealistic to expect that mediation results in a “win-win” situation. The term “bittersweet” may be a more appropriate description of the realities of mediation. That being said, there are many valuable benefits to mediating your dispute that are worth considering.
Cost is a major drawback of our legal system; it weighs heavily on legal decisions and often hinders the ability to pursue, or continue, a claim. Mediation serves as a valuable tool in terms of cost and effectiveness. A successful mediation can save a party substantial fees and costs that increase with time. Mediation also gives each party the chance to weigh the disadvantages of settling with the very real risks of continuing litigation. Trial dates are hard to come by—especially in these economic times. Discovery can be long and overwhelming. There is also a risk of being awarded a judgment at the same amount or lower than an offer presented during mediation, leaving a party “upside down” in terms of costs expended and judgment awarded.
Along the same lines, mediation is an efficient use of time. Mediation can conclude in a matter of hours and if successful, will resolve the case. Even if the mediation ends without an agreement, it can speed up the settlement process. In some cases, a party will use mediation as a means of gauging a “number” or “range,” perhaps not intending to settle at all. However, unbeknownst to both parties prior to mediation, their ranges may be close enough that settlement turns out to be preferable for both sides.
Mediation can also help review a case with an outside third-party’s perspective and evaluation of the case. Oftentimes the mediator may be very skilled and knowledgeable in a particular area, leading to a more reliable and accurate evaluation of the case. Though, it is important to remember that the mediator plays the role of the devil’s advocate—you may not always like what you hear. It is not always possible to interpret the mediator’s actual position; however, the value comes from the mediator’s ability to point out the strengths and weaknesses of each party’s position. While at times the mediator may come off as “two-faced,” he or she has the skill to provoke serious thought and consideration.
Additionally, mediation gives both parties the opportunity to bargain for non-monetary terms. For example, parties can agree to confidentiality or bargain for non-pecuniary benefits. A settlement agreement can account for things that the losing party—and perhaps even the prevailing party—will not gain from a judgment.
If you have any ralated issues, please contact our office.