The practice of going to mediation to resolve a litigated dispute has become routine. Mediation is now viewed as a planned-for stage in the proceedings where the case is likely to get resolved. The parties file their pleadings, attend a scheduling conference with the judge, perhaps engage in some motion practice, perhaps exchange some written discovery, but often postpone at least some depositions, expecting to settle the case at a scheduled session with a mediator. This practice seems all well and good–good for the parties, good for mediators. But maybe it’s too much and not enough at the same time.
If all you want to do is settle the case, there are lots of ways to do that without calling a mediator. Holding ongoing settlement conversations between the attorneys was the way we always used to do it in the old days before mediation became so prevalent. Lots of attorneys are able to settle cases by direct communications with opposing counsel. It is surprising, however, how many times parties and attorneys show up at a mediation without having had a single serious settlement discussion beforehand. Perhaps the availability of mediation is contributing to a decline in direct negotiations between counsel.
Sometimes the parties themselves circumvent their attorneys and open up a settlement discussion between themselves. More often than not, however, that avenue is blocked by one or both parties’ unwillingness to talk to the other side.
New tools are also becoming available to resolve disputes without mediation, and even without communication of any sort, including on-line services that allow the parties to input settlement demands and offers to a computerized system that simply advises the parties whether they have reached agreement without revealing either side’s offers to the other side. (See also the comments on a post on Peter Phillips’s blog where another such provider tried to help me understand such a system.) Again, if all you need to do is settle the case, and you don’t need help understanding the other side’s view of the case, and you don’t need help overcoming any emotional or other issues that are contributing to the dispute, maybe you don’t need mediation. No one would think of hiring a mediator to help them buy a car for example. You just go to the dealer, do your best haggling, and agree on a price. In that kind of negotiation, the mediator’s function would be limited to providing a forum for settlement negotiations to take place, and perhaps serving as a negotiation coach for the parties. Or, especially in settlement conferences conducted by sitting or even retired judges, the mediation functions as a place where people go to get a neutral evaluation of the case, which they can either accept or reject or perhaps modify.
If people only think of using mediation to conduct a formalized settlement negotiation, they may not be realizing mediation’s full potential. I sometimes ask parties attending a mediation what they think the goal of mediation is, and they usually reply: settlement. Correction, I say. Settlement is only one possible by-product of mediation. The true goal of mediation is enlightenment. Mediation is the place to allow the parties to understand the other side’s motivations and interests. Mediation is the place to allow the parties to explain their own goals and feelings. Mediation is the place to gain a better appreciation of the benefits and costs of the parties’ alternatives, whether by a negotiated resolution or trial. Mediation could be a place to narrow the issues in dispute, reduce the costs of litigation, and focus the parties on the most important parts of the case. Mediation might be a place to explore more deeply the full costs and risks of continued litigation. And mediation could be a place for obtaining true reconciliation between the parties, or perhaps finding the basis for a new business or personal relationship. You can’t do any of that by just throwing numbers into a hat.
All this means that mediation could be overkill for some cases that just need a venue for settlement negotiations (although a half-day session with a mediator is not a big price to pay to resolve a dispute that would otherwise consume substantially more than that in legal fees). On the other hand, mediation is under-utilized to the extent that parties are not always willing to engage in an intense discussion of all of the forces driving the dispute. Mediation is also seriously under-utilized as a true alternative to filing a lawsuit, either in cases where parties have potential legal claims; or as a means of resolving business or family conflicts that don’t belong in court, as I discussed in a previous post.