Encouraging Mediation Early On: Good for Clients and Their Attorneys!
Credit: @mkvandergriff
If you’ve read these blogs before, you’re probably familiar with the points I make about mediation being a great tool to help people move past difficult issues that are both cost-efficient and carried out as painless as possible. The high rate of success and participant satisfaction are also great benefits. I also frequently point out that so many people are unaware of what mediation is, or are misinformed about it in some manner.
For those who have attorneys, I believe perhaps some do not take enough time speaking with their clients about the strengths and weaknesses of their case, as well as encouraging them to try mediation, considering the benefits of mediation versus potential costs, risks, etc. Mediation is a high probability opportunity for the client to escape whatever dreadful situation they find themselves in oftentimes. Attorneys can seize this opportunity to do a great service for their clients, and build trust in their services by demonstrating how much time, money and frustration they helped their clients save by going ahead with mediation early. Sure, many attorneys make most of their money litigating cases. However, happy clients who know all the frustration and litigation costs you saved them are eternally grateful and send you a lot more referrals. Don’t be afraid to sell yourself on always doing right by the client! It often pays off for you in the long run.
Certainly, there are situations where mediation is not appropriate, at least not yet, whether one is represented by counsel or not. One key thing that is important before mediation is to have a deep understanding of the situation. You need to have information in order to know:
What issues are present and need to be resolved;
What the facts are; and
What evidence is relevant.
It is vitally important that one does a thorough investigation of facts, evidence, witnesses, etc. Nothing is worse than discovering a previously unknown fact that is detrimental to your position in mediation, or even worse at a later stage. There are also circumstances where the total damages or extent of damage is uncertain for a period of time (potentially indefinitely). This is common in personal injury and property damage cases where costs, etc. take a long period of time to assess. In these scenarios, it is best to wait until a somewhat clear picture of damages can be drawn. This also makes the opposing side more likely to be amenable to negotiating an agreement.
Certainly, litigation is necessary at times. Where the law gives little direction, where the other parties refuse to cooperate, etc. Even then, it is likely that a judge would order the parties to attempt mediation once before going to trial. Either way, mediation can give those parties one last chance to decide on their own before submitting the issues to a judge or arbitrator.
It is important to have a professional assess your situation whenever possible to determine what is best for you. However, once you’re prepared, mediation offers a great chance for you to resolve your dispute with as little pain as possible compared to all that comes with litigation. Get clear on what’s going on, what you want out of the situation, and attempt mediation when you’re adequately prepared—the sooner the better.