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What Might You Say When Asked About Mediation?
By Ray Chadwick
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“Only two things can happen at trial and one of them is bad.”
A. Rowland Dye, Noted Trial Lawyer |
Have you ever been asked to discuss why, when or how to mediate a case? Or
been asked to make a presentation on mediation and its benefits? If so,
what were some observations or recommendations you provided? I have been
asked these questions by skeptical or inexperienced lawyers, and made
presentations as well. This will be the first of several articles (not
sure how many) that will discuss what I typically say.
What do lawyers who don’t know much about mediation or who have
reservations about it often say? Something like, “It will be a waste of
time,” or “It will be used to learn about how I will present my case at
trial.” What might be said in response? I frequently begin with what
Rowland Dye told me (see the above quote) when I was a fresh-faced lawyer
confident that my clients were always right and overconfident that I could
easily make a jury see the justness of their case. I follow this with an
observation that in cases where I was the advocate in mediation, even if
the case didn’t settle the day of mediation, the day was not wasted. More
often than not, mediation set the stage for a settlement by causing
parties to reevaluate their positions or by showing attorneys what further
work was required for meaningful settlement negotiations. For those
lawyers who fear that opposing counsel will use mediation only to preview
their trial strategy and peek at their evidence, I assure them that I can
count on one hand (and not use all my fingers) the number of cases where
it appeared this was what mediation was being used for.
A bit of advice I pass on to skeptical attorneys is to have a positive
attitude – or least not have a negative attitude – as they enter
mediation. The experience is likely to lead to them to believe that
mediation is the best way to help a client end a legal dispute or lawsuit.
So what might you point out to a lawyer who wants to know, or has doubts,
about mediation? Some observations you may wish to make are:
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Mediation allows clients to control their own destiny, not have
strangers in a jury box – whom lawyers and judges sometimes find
unpredictable – decide what will happen. |
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At the end of the day, when a mediation is successful, there is
certainty of result because there are no appeals. |
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Mediation eliminates risk (remember those unpredictable juries). |
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Mediation saves clients money by reducing legal expenses. |
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When a mediation settles a case, the client will not experience the
stress and anxiety of trial (and neither will the lawyer). |
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Although it may not produce a “win-win” result, mediation can achieve
a “no-lose, no-lose” one. |
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If a settlement is not reached in mediation, it sets the stage for
further discussions that frequently result in a settlement. |
NEXT TIME: What I think constitutes success at mediation and my
recommendations for achieving it.
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Ray is an Augusta based
mediator & arbitrator. Today he also serves as the Liaison
Committee Chair to help facilitate communications with GODR. He
is past Chair of the Dispute Resolution Section, State Bar of Georgia
and continues to serve on its Executive Committee. He also served as a
member of the ADR Court Program Liaison Committee of the Georgia
Commission on Dispute Resolution.
Ray can be reached at 706-823-4250 or via email at
rchadwick@chadwickmediation.com |
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