Mediation is a process. As a mediator, I strive to facilitate a settlement between the parties by building on areas of common agreement and by challenging the parties to think critically about the dispute. If my mediation involves pending litigation, the parties must focus on the potential outcomes and the business and other risks which will naturally and inevitably result from protracted disputes and/or continued pursuit of the lawsuit. Mediation has been with us for a very long time. Mediation was used extensively in the United States colonies – the colonists knew that peaceful coexistence was valuable. Lastly, other cultures value dispute resolution through mediation significantly more than litigation – in China, for example, there are nearly five million mediators and only about 145,000 lawyers.
Why has mediation become so prevalent? Litigation is an expensive process. It is costly to the parties and participants — not only directly, in terms of the money expended on lawyers’ fees and litigation costs — but also indirectly: you, or your management team or family, must devote significant time and energy to prosecution (or defense) of the case. In a business context, this diversion of effort from “the business” of the business is expensive and often lethal. I have personally observed businesses ultimately winning in court but nonetheless going out of business or into bankruptcy simply as a result of the disruption and delay. In all contexts, litigation is often emotionally draining as the parties must relive the dispute, even tedious details of it, with unrelenting frequency. The really bad thing is that what a judge (or arbitrator) or jury may do with your dispute is often uncertain: you may win, but you also may lose — or not “win” as much as you hoped for. See my article Mediating to Win? You may battle to a draw. Moreover, court proceedings, and their outcomes, are public. Litigation is usually an unsatisfactory way to resolve a dispute and achieve closure to it.
My message to counsel is simple: while I do want your client to reach a settlement, I am committed to supporting the attorneys. I work with to reach a common goal – a satisfied client. I am acutely attuned to the many challenges an attorney faces in litigation, in our civil justice system and particularly in mediation. My client is the system. My role is to assist counsel in providing their client(s) a realistic evaluation of the alternatives possible/likely in the event settlement is not achieved. Once armed with that assessment, together they may then make an informed decision to settle, or to not settle. Once that has occurred, I have done my job.
My message to the client – the end user of mediation services – is also quite simple. In mediation, there are no losers, only winners. If the mediation results in a settlement of the dispute, both sides save the expense, uncertainty and disruption of continued litigation and trial. Even if the mediation fails to produce a settlement, both sides have the satisfaction of having at least tried to resolve the dispute out-of-court and have had many of the fundamental premises of their ease tested by an independent third party. Please read about my mediation philosophy and contact me if you would like me to share some articles I have written about the fascinating world of mediation.