MEDIATION, A NEW FOCUS

Litigation has evolved into a complex and costly environment and the true goal is sometimes lost in the process; a cost-effective result for the litigants.    In recent years mediation is generally discussed and encouraged by the courts but as part of the process not as the ultimate solution.  That appears to be changing with the turmoil caused by COVID.  Prior to this year an attorney could give the clients an expectation as to when they may expect a result but with the COVID shut down of the courts you can no longer tell them whether it’s six months or multiple years, it’s anybody’s guess; thus a new focus how to bring a matter to a timely conclusion.

One solution to this uncertainty is mediation not just as an adjunct but as a goal.  While an attorney’s preparation of the evidence is the same regardless of the form of resolution, the client preparation for mediation is quite different. 

As the client is a direct participant in the mediation process rather than a reactive witness and is likely a novice in the system, preparation must be quite different.  Your client’s demeanor, expectations and responses will have a direct effect on the result of the mediation.  For example, the client views a successful outcome of a trial as winning.  In their mind they are right and would expect all to agree. Let’s face it that probably won't be the result at trial and certainly won’t generally be the result of in mediation.  The true measure of any successful mediation is that everyone leaves somewhat dissatisfied as compromise, the currency of a mediation, is the sole key to success.

Another client expectation relates to his or her attorney.  What their attorney told them about their case at the onset may evolve as the case ages but that original expectation is still in the clients’ head.  Further, inexperienced litigants have a vision of the attorney’s role as that of a warrior fighting for their cause based upon the personality of a litigator and probably what they have seen on television.  While that may have some basis in truth in a trial setting that demeanor will be a negative influence in the mediation process.  

These are just examples of the many different pieces to the puzzle of the mediation “dance” that ultimately leads to a successful result.  As trial nears you will spend many hours preparing your client to be the best witness possible, but history has shown me that the same amount of client preparation is rarely exhibited for a mediation.  Today litigation is expensive, but the costs are unavoidable if you want the best result.  Retain an experienced mediator to prepare your client for the mediation process.  It will raise the odds of a successful result while at the same time shielding you from having your client’s expectations of your dedication to their case diminished as you discuss a result that is less than their expectations.  If the mediation is not successful and the matter goes ultimately to trial they will still view you as their warrior. 

In all of my years of litigation I have never had a client express gratitude for being a party in a trial, but I constantly have people thank me for having been in a mediation.  There is great satisfaction is resolving your own issues rather than leaving fate in the hands of twelve strangers.