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Mediation as an Alternative to Trial in Trust, Real Estate, and Business Litigation

by | Feb 21, 2023 | Breach Of Contract, Business Litigation, Firm News, Real Estate Litigation, Trust & Estate Litigation

As is well known, a large percentage of civil cases that are filed in Superior Court never actually go to trial.  Instead, most of them settle out of court.  In California, it has reliably been reported that an astounding 96% of all civil cases never go to trial and are settled out of court without reaching trial.  There are many reasons for this, which we will discuss in detail in a future Blog article.

Achieving an out-of-court settlement is not always easy.  Not uncommonly the reason that the Plaintiff or Petitioner filed the case in the first place is that negotiations about the disputed issue had broken down beforehand.  Very often tempers and emotions are involved, and may be running high.  Not all disputes can be solved by sitting around a conference table and calmly reasoning together.

Once one side files a lawsuit, this ensures that the parties have to deal with one another.  In this sense, many lawsuits are properly conceived as the first stage of negotiations.  Both sides have the option of either letting a court, i.e. judge and possibly a jury, decide their case and fates, or they can try to negotiate to reach a mutually acceptable outcome.  But negotiating can be difficult when tempers are high and emotions are involved, usually along with substantial money and property.

1. Basics of Private Mediation.

A common solution to this scenario is private mediation.  In private mediation both sides retain a private mediator (often accurately referred to as a “neutral”) to preside over a private mediation session with the goal of fashioning a settlement.  Usually the mediator is a retired judge or, less frequently, a very experienced and seasoned attorney.  There are well-known mediation companies that make a business out of supplying qualified neutrals, often along with a location for the mediation.  Other mediators are independent.  In either case, the goal is the same: to facilitate settlement.  The mediator has no power to force the sides to do or agree to anything.  His or her sole power or goal is to assist the parties to reach a voluntary agreement.  Thus, mediation is a low-risk alternative to trial because, in stark contrast to actual trial, if the parties reach an outcome, by definition it is an outcome that was acceptable to all of the parties; otherwise they would not have agreed to it.  Thus, the main risk to either side in mediation is that the mediation fails and the parties do not reach a settlement.  If this happens, the parties will have had to pay the mediator fee, and their attorney’s fees for the mediation, an amount which usually totals several thousand dollars.  But there is no risk that the mediator will “force” a settlement that a party does not agree to.  The mediator has no such power.

Many mediations are done in person, at an appropriate venue with the necessary conference rooms and so forth.  Since the Covid pandemic, virtual mediations, conducted by Zoom, have become popular.  This is also a popular solution when some of the parties to the litigation live in distant locales.  Buffington Law Firm has found virtual mediations to be very effective and often more convenient for the parties than live mediations, which may entail costly travel arrangements.  At Buffington Law Firm we have a virtual appearance room equipped with a Big Screen monitor, ultra-fast internet, and all the necessary conveniences for an effective virtual mediation.  Sometimes, of course, in-person mediations are appropriate.

Incidentally, everything that happens at mediation is inadmissible in court for essentially any purpose whatever.  Thus, if one side offers to compromise, makes some admission or other, etc., as sometimes is appropriate in mediation, none of this would be admissible if the mediation fails and the case proceeds to trial.

2.  The Mediation Process.

It is important to understand that Mediation is a form of litigation by means other than trial. The attorney is still very much an advocate for his or her side. Usually no witnesses are called, there is no formal testimony or structured presentation of evidence and so forth as is done at trial.  But make no mistake, mediation is still an often contentious process in which each of the parties argues the case to the mediator.  The attorney must be solidly prepared, knowledgeable, and ready to advocate the case.  Buffington Law Firm has represented clients in over a thousand mediations and settlement conferences (another form of mediation) and we believe that it is essential in a mediation to effectively argue the case to the mediator so that the mediator understands that our side’s case has merit, and that any settlement will have to reflect the merits of our case and the interests of our client. Thus, the best mediations occur after counsel has had a good opportunity to investigate and at least partially prepare the case.

Prior to the day of the actual mediation, both sides normally submit mediation briefs to the mediator. The mediation brief is the first look that the mediator gets at the case, and Buffington Law Firm always ensures that the brief argues both the facts and law applicable to the case persuasively.  We have learned that it is critical to make the mediator understand the strength of our case, and further to understand that we are quite prepared to take the case to trial if the mediation fails.

If the mediation succeeds and the parties reach settlement normally the parties will execute a written settlement agreement, which is a legal contract that is enforceable in court.  Normally this settles the case, ends the lawsuit, and enables the parties to move on with their lives and businesses.  Buffington Law Firm has a success rate in mediation that is far above 50%.

Even when a mediation fails, it is usually not a waste of time.  One of the benefits of a mediation if the parties have obtained a good mediator, is that the parties may gain the mediator’s neutral perspective of the case.  Many mediators are retired judges who may have presided over and often decided many cases somewhat similar to the case being mediated.  This can be valuable, and it may help counsel better understand some aspect of the case and perhaps predict how a judge or jury may react to some element of the case.  Rarely is mediation a waste of time.

If you are involved in an inheritance dispute, real estate controversy, or business dispute, Buffington Law Firm invites you to contact us for a Free Legal Consultation.  All consultations are completely confidential and protected by the attorney-client privilege, and are with an actual experienced trial attorney.

Roger J. Buffington