Have you ever had a case where you and your opposing counsel got a head start on trying to get the case settled, only to go to mediation and get stuck because the mediator just wasn’t good at mediating? I’ve been there. It is quite a frustrating experience to be in a position where you as counsel have been able to accomplish more over the phone and via email than you can once you have brought the parties together and paid a mediator. I have come to realize that everyone who has chosen to wear the hat of a mediator does not have the skill or patience to work the parties, and the attorneys to resolution of their case. While every case will not settle at mediation, regardless of how great the mediator is, choosing the right mediator can be the difference between settlement and trial.
When choosing a mediator you need to choose someone who is aware of the risks that each party will be taking if they decide to not settle and take the case to trial. You and your client have to be able to be honest about your best day in court and your worst day in court. Who better than the right mediator to allow that to reality to permeate. One thing that I love about mediation is that it allows my client to be confronted about the true weaknesses of the case from someone other than me. Sometimes clients choose to be in denial regarding the strengths and weaknesses in their case. In my experience, once the mediator is able to take the facts and postures from the opening statements and present them to my client in the way that a trier of fact would, the light bulb seems to go off. They begin to see their case for what it really is and not just what they want it to be. This tends to allow for a real analysis of the best and worst day in court. After all, no one likes to lose and no one wants to be faced with their worst day in court becoming a reality. Anyone who is a trial attorney knows that you win cases you should have lost and you lose cases you should have won. Nothing in life, yet alone in trial is guaranteed.
In addition to choosing someone who is aware of the risks which are involved in your case, you also need to choose someone who is patient. You want a mediator who will is willing to work harder than you and your opposing counsel to get the case resolved. There should be more action than “here’s the other sides final offer. You have to take it or leave it.” That lack of interest will only result in an impasse and wasted time. Obviously, there is no magic number as to how many times the mediator should be going between caucus rooms, but a mediator who has only come to your caucus room once to deliver the dagger of death is bad news. As mediators, it is our job to finesse the parties and the attorneys to the point where they want to own the final outcome, the decision. It is our job as mediators to get them to buy into the process where they get the power to decide how their case will be resolved.
Allow BMS law group to empower your client(s) to own the process of resolution. As litigation attorneys we have worn both of these hats and we know what it takes to be committed to each and every mediation and to give it the time and attention that it needs to give you and your clients the best opportunity to for resolution.
