Are You an Attorney?

Your main concern is whether mediation would serve the best interests of your client. Here are some factors to consider:

Is Mediation appropriate for the conflict?
Mediation is appropriate for most conflicts whether or not litigation has commenced. After all, mediation essentially is the parties trying to resolve their own conflict with the help of a neutral. However, in certain cases, for example, where a public court record or judicial precedent is important, mediation may not be appropriate.

How would mediation differ from current or past negotiations among the parties?
When a skillful neutral third party enters the picture, there often is a paradigm shift that allows the parties and their attorneys to overcome obstacles and resolve conflict that seems intractable. The mediation process provides a facilitated negotiation structure aimed towards settlement.

What is the likelihood that the case will settle in mediation?
On average, mediators report that between 85-95% of mediated cases settle. Whether a case settles in mediation depends in large part on the preparation of the parties for the mediation, the skill of the mediator, and whether the case is ripe for mediation. A case is ripe for mediation when sufficient discovery has been conducted or all essential information is known that would enable parties to make well-informed decisions during mediation.

How do the outcomes of mediations compare with those rendered from judicial or arbitration proceedings?
Since the parties control and voluntarily enter into mediated settlements, generally, they find the outcome more satisfactory. A recent study comparing court-rendered decisions to the last offer in negotiated settlements showed that the majority of plaintiffs would have obtained a larger monetary recovery with the last offer made in settlement negotiations, and that defendants had a greater risk of a bad result in court, that is, when defendants were found liable in court, their damages were substantially greater than the last offer in settlement negotiations.*

Your client can save money and time by mediating their dispute. Mediation is considerably less expense and less time consuming than litigation.

The vast majority of parties are satisfied with the results of mediation. A satisfied client is good for your law practice, too.

You may want to consider mediation not only when representing a client in litigation but also where there is a dispute but no claim has yet been filed.

*Kaiser, R. L., Asher, M. A., McShane, B. B., “Let’s Not Make a Deal: An Empirical Study of Decision Making in Unsuccessful Settlement Negotiations.” Journal of Empirical Legal Studies, 2008, Vol. 5, No. 30, pp. 451-491.