In last week’s Blog article we discussed the nature of private mediation as a solution to trial and verdict. In this article we will discuss why mediation is often the best solution to bringing a lawsuit to a close. Buffington Law Firm’s trust, business, and real estate litigation attorneys have often succeeded in resolving lawsuits by means of mediation.
Certainly it is sometimes possible to settle a case out of court without a formal professional mediation. Buffington Law Firm’s litigation attorneys have often achieved excellent settlements in this way. Often, however, a formal mediation is the best and sometimes the only way to accomplish settlement. Your attorney is your advocate, just as the opposing side’s attorney is his or her advocate. Experienced attorneys have found that often a professional mediator, standing between the two sides and with a neutral perspective and “no dog in the fight” is necessary in order to get the sides to move forward towards settlement. The mediation process is designed to achieve settlement and it often succeeds in doing so.
Settling a contentious lawsuit, through mediation or otherwise, has many advantages over taking a case to trial. Some of the leading advantages include the following:
1. Control the Outcome. In our opinion, perhaps the single most compelling reason to engage in mediation to settle a lawsuit is that a settlement allows a litigation party to control the outcome of the case and thereby eliminate uncertainty and risk. No matter how meritorious a case is, the outcome of trial is never completely certain. While most judges and juries try to do the right thing in a case there is no getting away from the fact that they may not see the case the way a given party to a case does. Nor do judges and juries have your best interests at heart. A judge is pledged to follow the law, apply the facts to the case, and reach an outcome which may be harsh and which may not be to a given party’s best interests. Juries are required to hear the facts, and apply the law in accordance with the jury instructions that the judge provides to the jury. This does not always mean that a case is going to resolve in a way that satisfies one or the other parties. Any trial lawyer who knows what he or she is talking about will acknowledge that trial can be unpredictable and can lead to unpredictable outcomes. There is always a risk of an outright loss. By settling a case through mediation, a litigant will have entered into a written agreement to which each litigant has agreed and which agreement is presumably acceptable to each side. Uncertainty and risk are accordingly minimized or eliminated by a mediated settlement to a dispute.
2. Cost. There is no getting around the fact that trial can be expensive process. Even a relatively simple trial usually involves five figures (over $10,000) in legal fees. Sometimes much more. Trial is an exacting process to prepare for, courts impose numerous expensive requirements, and this all makes for an expensive process. While mediation is not free or cheap, it is almost always far less expensive than going to trial. Often, Buffington Law Firm’s litigation attorneys can achieve an outcome that is comparable to (or sometimes even superior to) the likely outcome of trial without all of the costs that trial entails.
3. Finality. Trial ends with a verdict, but it does not necessarily stop there. Sometimes the other side can appeal and obtain a stay on the verdict by posting a bond. This can delay the final outcome of the trial for years. Further, sometimes trial does not fully end all of the controversies between the parties. A settlement crafted through mediation usually does, and normally there is no realistic possibility of appeal from the mediation agreement. Do not underestimate the value of finality in deciding whether to mediate and settle a case.
4. Collectability. Often or usually, when bringing a lawsuit, the plaintiff is seeking money damages. If the plaintiff wins a money judgment it is not a given that the defendant will make it easy for the plaintiff to collect the money. Defendants often try to hide their money in all kinds of creative and frustrating ways. There are “collection attorneys” whose entire practices are devoted just to collecting money judgments that a plaintiff obtained through trial. This is sometimes neither a quick nor inexpensive process. Generally, when a settlement is negotiated through mediation the settlement agreement contains provisions that make it very difficult for the other side to avoid paying.
5. Stress and Strain. Trial is an onerous process that takes a toll on clients and attorneys alike. Trials take people away from their jobs, families, and leisure time and generally involve a high component of stress. Resolution through mediation is almost always far less stressful than trial, quicker than trial, and it allows the parties to avoid the very significant stress and dislocations that trial usually entails.
6. Avoiding Involvement of Third Parties. Most trials involve third-parties as witnesses. Often it is not a good thing for one or both litigants to involve third parties. In trust litigation, this may involve calling family members and friends as witnesses who don’t really want to testify in favor of one side or the other; this can disrupt family harmony in a very unfortunate way. In business litigation trial may involve having to call valuable customers as witnesses. Customers sometimes do not want to appear at trial and it can disrupt valuable business relationships when one needs to call them to trial. Mediation and settling out of court avoids this.
Other Considerations of Mediation.
Mediations do not always succeed in reaching an agreement. But even when they do not, usually a litigant (and his or her attorney) can benefit from the mediator’s own perspective of the case. No two people ever see a case in quite the same way. Most mediators are experienced judges or attorneys, and they bring a neutral perspective to the table. It is often extremely useful to hear a neutral mediator’s perspective on one’s case. Even though sometimes this perspective is not exactly what your side was hoping to hear, it can be useful to hear the perspective of, for example, a professional mediator who served many years as a trial judge who has actually decided cases somewhat similar to the case being mediated. This can help calibrate expectations for the case, or highlight issues that need to be addressed in the trial.
Not all cases can be resolved at mediation no matter how competent the attorney or mediator. Some cases really do require trial. Buffington Law Firm is always prepared to take a case to trial if mediation fails. We believe that the most effective way to force the other side to settle is for them to know this; for them to know that we are prepared to “go the distance” to trial if the other side will not agree to a reasonable outcome.
If you are involved in Trust litigation, a business dispute, or a real estate dispute, Buffington Law Firm’s experienced litigation attorneys invite you to contact us for a Free Legal Consultation. All consultations are with an experienced trial attorney and are completely confidential and protected by the attorney-client privilege.
Roger J. Buffington