Litigation and court trials are extremely expensive and risky propositions. There is no certainty that a trial will bring a fair or just ruling for a case. Nor is there a certainty that once the trial is over, that the case will be over. Cases sometimes stretch long into the future as appeals are filed and motions heard. However, there is a certainty that any trial will be expensive, as they do require at least one attorney and an attorney team, working full-time at attorney rates for the length of the trial.
Such uncertainty with trials makes mediation a popular alternative to litigation. Mediations can resolve disputes before the case is even filed in court or at any time in the litigation process. There are many valid and compelling arguments for mediation, but there are some cautions that should be considered. Below is a discussion of these pros and cons to use in evaluating the decision whether or not to mediate a case.
Pros for Mediation
The parties will have an opportunity to be heard by a neutral party, who can provide an independent evaluation of the case. The mediator will often point out weakness, that may not have been recognized or appreciated before. The mediator can also provide a dose of reality to a difficult client as to their true position in the case.
Mediations are also a powerful discovery tools. They afford the opportunity to spend several hours with your client and the opposing side. This can provide insight into what is really important to your client that may not have been communicated in previous discussions. There is also an opportunity to observe opposing counsel and their client that will provide information that written discovery or even a deposition will not.
Positive Points to Consider
Some of the reasons that mediation should be considered include:
- Certainty of results, parties involved in decision and can structure practical settlement to their needs;
- Allows direct communication between the opposing parties;
- Avoids a win/lose or "all or nothing" decision;
- Remedies available are much broader than traditional legal remedies;
- Privacy and confidentiality of proceedings and of results;
- Available at an earlier time than traditional litigation;
- Potential to save time and money;
- Test strengths, theories and strategies of your case;
- Opportunity to influence how the opposing side views the case;
- Demonstrates a willingness to negotiate;
- Provides the opportunity to demonstrate skills of persuasion and negotiation; and
- Preserves or allows continuing relationships between the parties.
Cons to Mediation
However, there can be drawbacks to mediation. It can be a pointless exercise, if the parties are entrenched in a position and refuse to negotiate. Further, any important social or legal points will be lost in a confidential settlement. Sometimes it will take several mediations for the parties to reach some type of agreement, making mediations an expensive exercise. Lastly, a mediation will only be successful if the parties are committed to a resolution.
Also, if the party strongly believes in a position, then mediation may not be the best answer. Mediation only works if one party pays money and the other party is willing to take less than what they might get at trial. However, if a party believes it is not liable and should not pay any money, then mediation will not resolve the dispute. Likewise, if a party firmly believes that the other side is liable and so egregiously liable that settlement is unlikely to adequately compensate them, perhaps mediation is not the answer. Finally, if the case is more about the principal than the recovery of money, mediation will not provide the desired resolution.
Negatives to Mediation
Some of the drawbacks to mediation include:
- Party cannot be compelled to participate, except when ordered by Court;
- Need to establish a legal precedent; or complex procedural issues involved;
- Party with authority to settle is unavailable or unwilling to negotiate;
- May not be cost effective in a particular case;
- An agreement would possibly require court enforcement;
- Client has a standing policy that his/her business does not compromise;
- Opposing counsel is difficult.
In nine times out of ten cases, mediation should be considered and tried because of all of the positives. Mediation can bring a speedy and final resolution to a case. However, there are cases where mediation will not provide an opportunity for resolving the case appropriately. Each case has to be independently evaluated to determine if a mediation is likely to be fruitful, above are some of the questions and considerations to help make the evaluation.