Mediating in a crisis: how to ground your case with winning principles

Here's a common scenario:  Your client was reluctant to mediate, but the Court insisted.  On the surface, the facts seem pretty favorable, but if you look deeper, it's a maze of proof problems.  To make matters worse, your star witness is getting the jitters, depositions had to be rescheduled and the whole timeline is off.  On the eve of mediation, you scramble to finish your brief, and you have no idea how much the other side is willing to settle.  You just want this case to GO AWAY.

So, what happens when you feel like the case is slipping from you?

Well, for starters, let’s take a deep, cleansing breath.  It’s hard to focus when you're in a panic.

Then, ground yourself on three principles of mediation that should encourage every litigator feeling unsure of how to navigate the art of compromise.

1.     Mediation is not trial. Most people assume that the better your evidence, the higher your chances of winning.  Whether or not that’s true in a trial setting, it may not be relevant in mediation.  In mediation, a creative outlook, an open mind and a desire for dialogue are generally more effective than having a stronger legal argument.  A party may have good chances of winning on summary judgment, but the effort may bankrupt the client.  People who participate well in mediation don't focus on "winning" or being "right."  Instead, effective and often innovative options drive the endgame.  This should be good news for every litigator because each case is unique and mediation allows parties to create options not available in the courtroom forum.

2.     Uncertainty can be an asset. Poor evidence, shaky witnesses and unfavorable juries can make or break a case at trial.  But mediation applies alternative metrics.  In settlement discussions, parties can acknowledge the weak parts of their case without having their noses rubbed in it.  Progress is measured when parties willingly alter their offer or demand in recognition of a good opposing argument.  Uncertainty about trial can actually focus the parties on creating mutually acceptable settlement outcomes.

3.     Momentum favors settlement. If it’s true that most cases settle, then why is getting to mediation such a struggle sometimes?  Maybe it’s because the adversarial process seems designed for war and not for peace.  From bold posturing to overly broad discovery calculated to antagonize, so-called “successful” litigation tactics often leave no room for compromise.

But even so, the stats about settlement don’t lie.  Roughly 96% of cases resolve short of trial.  So, if a party claims they’d love to try their case, don’t assume it’s true.  More attorneys than not have settled cases they convinced others they were eager to try.  Moreover, even though discovery can be infuriating, it does tend to propel parties towards settlement by exposing weak arguments, clarifying damages and piling up legal costs. Judges also lean on parties by enforcing mediation deadlines and issuing stern warnings to meet at the table before coming to trial.

In closing, even if you begin a case on shaky ground, you can still have a successful mediation.  If you’re willing to accept the unique potential offered by this time-honored forum, you can embrace and even capitalize on its abundant possibilities.

If you would like to schedule a mediation with Priscilla, please contact her Case Manager, Nikki Safavi at 206-653-9616 or by email at nikki@chanadr.com.