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Mediation as a Litigation Tool

On Behalf of | Jun 13, 2017 | Business Litigation

Buffington Law Firm’s civil litigation attorneys often utilize formal Mediation as a tool to conclude business litigation, real estate litigation, or trust dispute cases.  Mediation can be a very cost-effective and efficient way for our clients to achieve their objectives without the cost, stress, and uncertainty of trial.

What Mediation Is.  Mediation is a process whereby a “neutral” mediator presides over settlement negotiations.  Typically the mediator is either a retired Judge or a very experienced attorney.  There are well-known firms that specialize in providing these neutrals together with a facility for conducting the mediation.  Mediation is not an evidentiary hearing.  No testimony takes place.  The setting is relatively informal.  However, the attorneys may and usually do argue their case to the mediator in the process of trying to negotiate a settlement to the case that is favorable to their side.  It is important to understand that the mediator, like the attorneys, has zero power to force a settlement.  Every settlement that derives from mediation must be the product of an acceptance by the clients involved.

What the Mediator Does.  The Mediator’s job is to try to bring the parties together to reach a voluntary agreement that concludes the case.  By no means does the Mediator decide the case.  The Mediator’s job is to facilitate agreement between the parties.  Towards this end, he or she may make suggestions; not atypically a Mediator may point out weaknesses in one side’s case, or for that matter strengths.  The Mediator counts a successful mediation as one in which an agreement is reached.  It is not the Mediator’s job to be concerned as to the fairness or the terms of the settlement.  That is for the parties and their lawyers.  The best Mediators know that Mediation is a voluntary process of settlement in which it is the Mediator’s job to facilitate but not dictate.

Advantages to Mediation.  Mediation has many advantages over going to trial.  Just as in any settlement process, mediation allows the parties to control the outcome of the case.  Even meritorious cases often entail considerable risk to the parties concerned.  There may be attorney’s fee provisions, in which the losing side at trial will be required to pay the winner’s attorney’s fees.  Such costs can be ruinously high.  There is always considerable uncertainty as to what the outcome of any trial will be.  Trial outcomes can be harsh.  Mediation allows each side to control the outcome of the litigation.  

Another advantage to mediation is cost.  Mediation is typically a one-day session with a few days of preparation by the attorneys.  Trial, by contrast, often involves weeks or even month of preparation, and the trial itself may take weeks or months.  Mediation can be far less expensive to the clients than trial.  For a more detailed discussion of the advantages of settling a case over going to trial, see our recent Blog post “Why Most Business Litigation Cases Settle.”

Another important attribute in mediation is that often both sides can benefit from learning what the mediator thinks about the case.  Since mediators are almost always either retired judges or experienced attorneys, this can be valuable.  Good attorneys are advocates, not neutrals, and it is sometimes difficult for the parties’ attorneys to have a truly objective and detached view of the case.  The attorneys have often been fighting the case for a year or more.  Hearing the impressions and thoughts of an experienced neutral concerning the strengths and weaknesses of the case can be valuable.  It can also often help the parties appreciate the notion that even their meritorious case is not necessarily a “slam dunk.”  Even many good cases have imperfections.  It is notorious that in trial certain imperfections in a case, which the parties may brush off as minor, may strongly influence the outcome, and not for the better.

Above all, mediation is a litigation tool.  It is not a substitute for thorough preparation by the attorneys involved.  Attorneys should be well-prepared when entering into a formal mediation.  But mediation is often an effective way for the party to achieve his or her litigation objectives.

Buffington Law Firm’s business, trust, and real estate litigation teams have decades of experience in mediation.  If you believe that you have such a dispute, give us a call for a free legal consultaion.