Some trial lawyers look down at mediation as a sign of weakness and lack of confidence in one’s case.  However, after experiencing mediations as both a trial lawyer and a mediator, there is more to a mediation than initially meets the eye.

As many experienced litigators can agree, one of the most important aspects of any case is understanding your opponent and their case. What is the other party seeking? How will they go about trying to obtain it?  And, of course, why do they want it? Are all important questions to ask during  a pending case.  Mediation offers an opportunity to get answers to those questions and to fashion a resolution of a case that a victory in court will not provide.

So how might a mediation help get you there? A few ways, including the opportunity to spend time in close quarters with opposing counsel and his or her client. Here are several more reasons why mediation, led by a knowledgeable mediator, can be crucial to your case’s process.

1. Caucuses. As they say, two pairs of eyes are better than one.  If you have confidence in the mediator and her ability to assess the merits of a case, then the mediation provides an opportunity to test your arguments to a neutral who will have studied the briefs and can provide useful feedback on critical factual and legal issues.  Caucuses provide a meaningful opportunity to openly discuss matters that you do not want the other side to hear, a chance  for you to use to test ideas with an individual who may understand the other party’s case better than you do.

2. Emotions. We have all seen strong emotions emerge during lawsuits which are stressful for both client and counsel.  Mediation is intended to offer a safe forum for expression of strong feelings and these reactions also give you a glimpse into the other side’s mind. Pay close attention and remember that experienced mediators are trained to handle emotions productively.  You can learn a lot about how both your client and the other side feel about the case which will provide valuable insight into what it will take to resolve it..

3. Information Gathering.   Hopefully, the mediation will result in a settlement, but if it doesn’t, that does not mean that the mediation has failed.  A mediation is a way to learn things about the case that a savvy lawyer may exploit in further litigation of the case.  Sometimes, it is necessary for the parties to engage in more discovery, or take expert witness depositions before it is possible to settle the case.

4. Information Sharing. Remember, the overall goal of mediation is to settle the dispute which requires that you share information, not withhold it. While learning about the other party’s case is certainly a benefit of the negotiation process, the mediation is designed to produce a settlement agreement in your client’s best interests, without the time, stress and financial commitment of a courtroom battle.

by Bruce Friedman

Bruce Friedman is an experienced mediator and arbitrator with over 35 years of complex litigation experience in the areas of insurance, financial services, professional liability, business, real estate, entertainment and consumer and securities class actions. His mediation philosophy is to provide an evaluative analysis within the context of a facilitative process. Bruce’s approach to arbitration is to make the process as efficient as possible resulting in a principled decision based on the facts and law.