Don’t Hesitate to Mediate:  Using Mediation to Achieve a Win

In a civil lawsuit, the ultimate goal is to get everything that your side is asking for.  The Plaintiff wants the Defendant to give in, or for the Defendant to lose at trial, and wants the Defendant to give the Plaintiff everything the Plaintiff feels she is owed.  The Defendant, on the other hand, wants the Plaintiff to see the error of her ways, and completely dismiss the lawsuit against him.  However, things are not often that simple.

Uncertainty of Trial:

In a civil lawsuit, if the issues are cut-and-dry and there is no dispute over the facts, then the court will be able to decide the case fairly early on, long before trial, through a Motion for Summary Judgment.  That means that if a case actually goes to trial there are good arguments on both sides. 

A law professor once told me that the beauty of our legal system is that we hand the case over to twelve ordinary people with no expertise, lock them in the jury room, tell them to decide what really happened, and then we don’t ask them how they did it.  While that is part of the beauty of our system, that also means that once the case is turned over to those twelve strangers you could easily be surprised by the outcome.  With that built in uncertainty of handing the case over to a judge and jury also comes the financial costs of preparing for and taking a case to trial.

Finding Middle Ground:

The uncertainty that comes with trial is why settlements are so prevalent.  Ideally, each party weighs the pros and cons of their case along with the expected cost of trial and the uncertainty of the outcome, and then each side comes to the table and works out some middle ground.  When a settlement is reached, each party can walk away knowing that they won on some level and that they have closure and certainty.

But, there are times when the parties cannot or will not find that middle ground.  In my experience, that often happens when one side is willing to settle a case but the other side (for a host of different reasons) does not want to.  That hold-out may have an inflated idea of how strong their case is.  Or, they might say that they are fighting it “out of principle.”  Such a case, where one side is reluctant to settle the case, can often benefit the most from mediation. 

What is Mediation:

In mediation, a neutral third party speaks with all parties involved in the case and helps the parties to arrive at a settlement.  Being neutral, the mediator does not have a stake in the outcome of the case and can look at the pros and cons of both sides.  The mediator then can speak with each party and get them to realize that their case is not as good as they would like or that the other side’s case is stronger than they realize.  Through such honest evaluation, the parties can have a more realistic expectation of what the case is actually worth.

Through the mediation process, the mediator often has confidential conversations with each party, without the other parties present.  In that way, the defendant (for example) does not know exactly what the mediator is saying to the plaintiff, and vice-versa.  This allows the party to be open with the mediator and not simply dig in their heels so as to not show weakness to the other side.

Benefits of Mediation:

A good mediator can get the parties to agree on a settlement often in cases where the parties’ starting positions are drastically apart.  I have seen mediators perform what seems to be magic as they get the other party to agree to settle for more than I thought they would ever agree to.

Mediation gives the parties control over their own case, as opposed to turning it over to the twelve strangers we call a jury.  In addition, it can often take place earlier on the case.  It can take a long time for a case to progress all the way to a trial.  But, mediation can happen as soon as the parties will agree to do it; often after the fact discovery phase.  This earlier resolution provides closure a lot sooner than a trial and allows the parties to move on.

Conclusion:

Agreeing to go to mediation does not mean that the case has to be settled in mediation.  Although the mediator will try to keep both parties at the table, either side can walk away if they choose.  It is possible that someone will not budge enough to reach an agreement, despite the mediator’s best efforts.  However, the cost of mediation is rarely wasted. 

A good trial attorney will have lots of tools in his/her tool belt, and mediation should be one of them.  If you are involved in a lawsuit, call the experienced trial lawyers at the Goosmann Law Firm, PLC, in our Omaha, Sioux City, or Sioux Falls offices.  We can help you evaluate your case and strategize the best way to get you the best outcome possible, through mediation or trial.