The Hidden Benefits of Mediation
Every seasoned lawyer is familiar with the obvious benefits of mediation. They include the aspect of confidentiality, which allows the parties to negotiate in a totally privileged context. While the cost of mediation is modest as compared to the cost of the overall litigation, normally mediation does not take place until well into a lawsuit and consequently is not a truly effective device for avoiding litigation expenses. Rather, mediation should be thought of as mitigating the total cost of a lawsuit.
With this in mind, there is a benefit to mediation that normally is not identified. Mediation provides both parties with the opportunity to educate themselves more thoroughly about how their opponent is going to present the case. It allows the trial lawyer to appreciate the nuances of the opponent’s case and to make sure that his or her case stands up well in comparison. Consequently, when going to mediation, one should be as interested in hearing exactly why your opponent believes that his side is correct and yours is not as in the possibility of settling a case. The object is to identify each weakness that may be envisioned by your opponent, to assure yourself that you can overcome them. Appreciating your opponent’s case allows you to tell your client’s “story” in the most effective way possible. Too many lawyers forget this less obvious benefit of mediation. The hidden benefits of mediation are as follows:
First, mediation is an opportunity to test your strategy in a fairly realistic way. During the opening statement, you have a chance to lay out that portion of your case that you feel like you would like to share with your opponent and the other party to convince them that you are right and they are wrong. However, the reverse is also true. Through hearing both sides and trying to identify exactly what it is that your opponent is relying upon, you test your strategy to see whether or not your case is compelling.
In a further test of your strategy, one should understand that even though the mediator is supposed to be impartial and neutral, the mediator actually has a bias. The mediator is never actually impartial. The mediator’s bias is in favor of a compromise. Consequently, the mediator is going to potentially overemphasize weaknesses in your case and under emphasize weaknesses in your opponent’s case. Similarly, the mediator will de-emphasize the strengths of your case in favor of those of your opponent. That bias is built into the mediation process.
Consequently, one should not expect the mediator to provide guidance and tips as to how to try the case. All of this may fall by the wayside, in the process of a long and protracted mediation. The mediator will make comments that give you a fair degree of measurement of whether or not your case is strong or not. Similarly, the simple process of preparing for and developing a thorough presentation for mediation may also expose flaws in your reasoning or case that either need to be overcome, if possible.
The second benefit that is normally not apparent is that you have the opportunity to encourage your opponent to provide you with a wealth of information. Normally the response to such a statement is, “That is what discovery is for.” Discovery is very often seen by a trial lawyer as the development of the facts. However, the facts are mixed and presented differently, and this change can sometimes lead to radically different conclusions.
Some years ago, I was handling a case involving a disability claim that had been dishonored. The case had been developed and was almost ready for trial. In listening to the insurance company’s attorney describe how he was going to present the case, it became apparent that there was an entire area that was available to me that would actually make my case stronger rather than weaker. Following the mediation, I developed that area more thoroughly. We mediated again and settled the case. Therefore, one should be fairly careful in listening to what the opponent says because sometimes the opponent will give you a signal, not meaning to do so, as to things that they are concerned about or weaknesses that may be developed and exploited.
On an entirely different area, mediation will give you an opportunity to measure the commitment of your opponent and the opponent’s client to their case. There are times when you will be presented with an opponent that is in the settlement mode. By identifying your opponent’s desire to settle, you can use it to obtain a better result. Sometimes you may very well misread your opponent and will leave the room before a settlement could be obtained because you overreacted to criticisms of your case.
The final and perhaps most important aspect and benefit of mediation is that it will strengthen your client relationship. By listening to your client and observing your client’s reaction to the process as you go through mediation, you will have a much better understanding of your client’s tolerance towards the risk of litigation. Similarly, your client will have an opportunity to gauge the state of your preparation and your level of knowledge of the case. Therefore, if you enter mediation thoroughly informed about every aspect of the case and you are sensitive to your client’s expressions, you will leave with a client who is content to know that he or she is being very well represented by a highly competent lawyer. Additionally, by communicating the potential risks of a case, you can better inform your client and instill trust that you have his or her best interests in mind.
While most attorneys are hopeful that mediation can provide a direct route to successfully resolving their client’s claim, even an unsuccessful mediation can lead to better trial preparation and a better result with improved client relationships.
By Andrew C. Hall
Hall, Lamb and Hall, P.A.
2665 S. Bayshore Dr., PH 1
Miami, FL 33133
South Florida Legal Guide 2012 Edition