Your Next Mediation: Think it Through
| Publication year | 2018 |
| Author | By Clark Rivera |
By Clark Rivera
Clark Rivera's practice focuses on state court civil litigation, including both trials and appeals. Mr. Rivera has successfully tried cases in the areas of commercial law, real estate, trusts and probate estates, personal injury, professional malpractice, and employer-employee disputes. He has also represented clients in other dispute resolution endeavors, including arbitration, formal mediation, and private negotiation of settlements. A graduate of the UCLA School of Law (where his daughter now attends), Mr. Rivera's practice has been located in Pasadena since 1987. He can be reached at cr@clarkriveralaw.com.
Mediation is so commonplace these days that it is easy to forget how astonishingly effective it is in resolving cases. If you talk to senior litigators, they will recall a pre-mediation environment where it was difficult to settle cases, in part because practitioners worried that if they even revealed an interest in settlement, it could be interpreted by the other side as a sign of weakness. Getting your case into a settlement environment is much easier today, and sometimes even unavoidable, but dangers, or at least concerns, still lurk in the mediation environment. The purpose of this article is to pass along some suggestions that might ease your mediation pathway.
We live in a world of litigation in which more than 90 percent of all cases settle without going to trial. This raises an interesting question: which is the more important skill set—the gladiator's trial skills, or the negotiator's polish in pursuing compromise? As lawyers, we can have a robust internal debate on that point, but most of us would readily concede that our clients did not hire us for our "polish in pursuing compromise"; they hired us to vanquish the opponent. Consequently, the gladiator within each litigator can have misgivings about mediation, possibly believing that mediation's inherent push towards compromise will require the gladiator to abandon the attack on the opponent's walls, and instead press his or her own client for concessions, thereby losing luster in the client's eye and placing the gladiator's strength, and even loyalty, in question.
Therein, however, lies the basic genius of mediation, because in that environment the parties gain a facilitator who can promote the benefits of risk-avoidance and compromise without costing the gladiator his or her client credibility, hopefully keeping the client's "whose side are you on" dagger in the sheath. Therefore, the gladiator within each litigator really should embrace mediation, for one simple reason: it is ultimately the mediator, rather than the gladiator, who puts pressure on the client by exposing case weaknesses, while talking up the benefits of dispute resolution. The gladiator, in turn, is spared credibility by never really having to acknowledge the wisdom of what the opponent is saying or claiming, but rather only what the neutral, and very experienced, mediator is saying.
Of course, mediation offers more than just cover for the lawyers. In many instances, it gives your side of a case a direct line to the opposing party, without the same attorney shield that may have stifled any dispute resolution dialogue up to that point. It provides an opportunity for your side to float its major case themes to a neutral listener and ascertain whether those themes have the hoped-for traction or possibly any unanticipated boomerang effect. Perhaps most importantly, the process tends to hold people together longer, in semi-captivity, than their ordinary allotment of patience would allow, and many settlements seem to be produced well after one side or the other has begun doubting the efficacy of the process. Unquestionably, the process produces settlements in a high percentage of matters. However, the main reason for the gladiator to welcome the mediation process is that the wisdom of settlement can be pursued without any loss of valor. You have the help you need in the process, but you need to use that help. It is likely to give you the best chance at resolving your dispute.
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In this section, I want to make a short but important point: timing is responsible for many failed mediations. Some mediations fail because they come too late in the game, after the conclusion of virtually all depositions and even after experts have already been retained. The good part of a late-scheduled mediation is that the parties presumably know enough about the case and its strengths and weaknesses to mediate intelligently; the problem with this timing is that the parties are basically ready to resolve their dispute by trial and have rather fully invested in that process, and there will not be sufficient savings of legal expense if there is a settlement to really lubricate the settlement gears. Be willing to address the possibility of mediation while the savings to be derived from settlement remain significant.
Some mediations, however, fail because they are essentially premature. Early mediation can be a terrific idea, because the parties can resolve their disputes well before excessive business interruption...
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