WORKING WITH THIRD PARTIES (ATTORNEYS) IN MEDIATION
Reasons why attorneys are reluctant to use mediation, and reasons why they should.
1. “This case won’t settle. The other side is too unreasonable and there is too much hostility.”
a. The purpose of mediation is to create a process in which the other side is encouraged to be more reasonable and less hostile. One side’s angry behavior justifies the other side in resisting or engaging in bargaining.
2. “I’m an experienced attorney. I’ve settled cases before without needing a mediator.”
a. While attorneys are often able to settle their cases, the highest rates of settlement are reached when third party mediators conduct the negotiations. This frees the attorney to be an advocate and lets a professional concentrate on achieving settlement.
3. “We don’t need to settle this case. If I wanted to settle, I would just call the other attorney.”
a. If you don’t want to settle, you are not required to do so, but mediation may allow you to get what you want at lower cost and in less time. Mediation does not force a settlement, but creates a choice which did not exist before.”
4. “Why mediate? We have a mandatory settlement conference with a judge coming up soon.”
a. Mandatory settlement conferences with a judge can help, but in mediation you are able to retain control over results yourself and not be pressured to settle.
5. “This case is too complex for mediation.”
a. Mediation works extremely well in complex cases because each item can be negotiated separately or as part of a whole package. If it cannot be settled, the case may be simplified and less costly to try.
6. “We don’t trust the other party – they have not acted in good faith.”
a. Mediation is a process in which remedies can be created that do not depend on trust. Trust is often destroyed by the adversarial nature of litigation and may be recreated in mediation.
7. “I tried mediation once and it was not successful.”
a. Mediation is not always successful but it helps reach agreements in about 90% of cases. Each case is different, and a lack of settlement in one case does not mean another case will not settle.
8. “We’ve completed discovery and a trial date is set – why should we mediate now?”
a. At trial you may win or lose, but in mediation, because both sides agree on the outcome, there is a ‘win-win’ outcome. Even though discovery is completed, you may be surprised by unexpected evidence at trial.
9. “Mediation will only provide the other side with an opportunity for free discovery.”
a. Both sides will learn more about each other’s case in mediation, but the truth will come out in trial anyway. Surprises do not generally help or produce fair results.
10. “It’s futile. The other party is uncooperative. They won’t even return phone calls. We can’t agree on anything – how could a mediator possibly assist us?”
a. The mediator will call the other side and try to bring them into mediation. They may be angry but not unwilling to engage in reasonable conversation. If they agree, will you?
11. “Since this is a non-binding process, there is nothing to keep the parties from changing their minds.”
a. When mediation results in agreement, a document (Memorandum of Understanding) is prepared which makes the settlement final and binding. Before agreement, the parties have a right to change their minds, to try an option out, or make sure the final result feels balanced and fair.
12. “Mediation doesn’t guarantee a resolution. We need a final and binding decision to end this dispute.”
a. Mediation can result in a final decision if both parties agree. You can’t lose anything by entering the process, because you control the results. In some cases, mediation is combined with arbitration to produce a result the parties agree to accept.” (Note: A memorandum of understanding derived from a successful mediation is a binding legal contract enforceable in court)
13. “Mediation means we have to make a compromise, and we won’t.”
a. Mediation does not always mean you have to compromise. In many cases both sides can get 100% of what they want. The decision will always be up to you.
14. “We’ve already tired to settle this matter without success – how can mediation make any difference?”
a. A mediator may be able to discover why previous efforts at settlement failed and create solutions to overcome these difficulties. A third party outside the dispute can sometimes see the options clearer.
15. “We don’t need mediation – we’re certain to win.”
a. It is always possible to lose in court. In mediation, you may both be able to win. If you do not like the proposals for settlement in mediation, you may continue to litigate without losing anything.
(BASED ON THE WORK WITH JERRY MURASE)
Cloke, Kenneth, Center for Dispute Resolution, Mediation: Revenge and the Magic of Forgiveness, 1990.
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