The following is a summary of a discussion that occurred on December 20, 2005. The lawyers involved were Chuck Wasilefski, Ed Zych, and Paul Dellasega. The lawyers reflected on their experiences with mediation.
Mediation
Ripeness
If the court orders mediation and no party views settlement as a viable possibility, it is highly unlikely that settlement will occur. In order for a mediation to be effective, at least one party has to come to the mediation willing to consider settlement. The case must be ripe in at least one party’s view. Even if some participants are opposed to mediation, that position may change as the mediation progresses. “Mediation can soften issues and positions, humanizing the conflict.” (Chuck Wasilefski)
Timing
Timing is critical to a mediation. “Mediation too early may be problematic or counterproductive.” (Ed Zych) However, as trial dates approach, the dynamic of the mediation changes. Having a mediator involved that can adapt and direct negotiation styles to best suit the timing of the case is very helpful to the success of the mediation.
Communication
Mediation is especially important if lawyers have difficulty communicating. If there is a major personality clash between counsel, having a mediator present to massage the situation and carry communication between the parties is critically important.
Impact on Clients
The mediator also plays a critical role with the clients involved in the dispute. The lawyer, as advocate, may have difficulty relaying the weaknesses of a party’s case to the party. Having a neutral involved adds perspective to the strengths and weaknesses of both sides. There are often ancillary issues and dynamics and a mediator can provide further perspectives and insights. Even though settlement counsel may be aware of where a case should settle, the mediator is often necessary to bring the clients to that number.
Range of Settlement
Isolating the range for settlement is something that the mediator can accomplish in a way that counsel cannot. Although counsel may know what the range for settlement should be, the mediator can expose the range in a way that encourages settlement.
Attorneys that have the most trouble are the ones who don’t do a large volume of work in one area. “Having the expertise in only one class of cases prevents the attorney from seeing a spectrum of case settlements.” (Ed Zych) The mediator can play a valuable role in cases with counsel that do not have a strong feel for the range of potential verdicts across substantive areas.
Comparison to Auction
“A mediation resembles an auction in many respects.” (Ed Zych) The process of mediation creates conditions for settlement. If the parties have positions that are close, mediation can often serve as a tipping point, moving the parties the extra distance to settlement. The mediator parallels an auctioneer, facilitating the settlement. While a party may not be willing to “purchase” an offer during the pre-trial phase, similar to a retail store, the mediation, similar to an auction, may provide the extra incentive for a party to “buy” an offer. The party is easily able to walk out of a store, but an auction creates a better atmosphere for purchasing for each party involved.
