Process, Discipline and Patience: The Keys to Effective Mediation
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Most cases settle, but not all settlements are achieved efficiently or effectively. We recently concluded a series of mediations in factually similar cases, with different opposing counsel, different mediators and in venues across the country. Those cases provided a case study of sorts for better understanding when mediation makes sense, and what lawyers can do to best position their cases for an effective resolution.
Is Mediation Appropriate?
The decision to engage in mediation should not be automatic, but it is important to understand the goals of the mediation. Although parties should approach mediation with the intention of settling, a single mediation session should not always be viewed solely as the means of ending the case. Lawyers and clients alike often fail to appreciate the extent to which an early mediation can provide valuable intelligence regarding not only the opposing side’s legal and factual view of the case, but also its litigation style and strategic approach. There is no substitute for direct and meaningful engagement for understanding an opponent’s approach to litigation. Additionally, the themes developed in early mediation can serve as an important foundation for positioning the case going forward, and may make a subsequent settlement more likely. The case might need to be viewed as an intermediate distance race, and not a sprint.
Similarly, even if settlement cannot be achieved at the mediation, the attorneys may conclude that the parties need to hear from each other directly, or that one of the parties needs to hear an assessment of the case from a neutral third party. Doing so may better position the case for settlement down the road.
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