Progress: Non-Settlement Benefits of Mediation
Credit: @medienstuermer
Even when mediation seems premature or is attempted but unsuccessful, it can still be very helpful to the parties when paving the way for a mutually beneficial settlement later on. Here are several reasons why you’d want to use mediation to get you closer to the finish line—even if it doesn’t result in a settlement the first time.
Mediation is highly effective, and has an overall resolution rate of about 85%—very good! However, mediation doesn’t always work out, and cases that don’t go all the way to trial sometimes need a few attempts at mediation before an agreement is reached. Despite that, mediation itself can help solve a lot of problems and begin priming the parties for settlement later on.
Dealing with Unrealistic Expectations
Many parties coming into mediation have little to no understanding of the legal system or what mediation is. They believe that the only settlement they should entertain is the most ideal outcome they could imagine. Unfortunately, those ideas are not always very realistic based on the circumstances. Mediation helps the parties or the attorneys explain to their clients why they will have to decide what concessions they are willing to make to craft a more feasible solution. I always say, just because someone could be entitled to X, does not mean they will actually get it, whether there is a judgment surprise, or the other party doesn’t have whatever is sought, etc. There are many ways our expectations can mess things up for us. Mediation helps people have those realizations at the right time and get into a more realistic mindset that mediation will take some work and likely some concessions on their part.
A Better Understanding of A Case = A Better Understanding of Risk and Exposure
Hearing the arguments and points the other party makes can help you understand what about the dispute is most important to them, what evidence they might use, and better understand the strengths and weaknesses of your case. It is very common for me as a mediator to notice that both parties often learn new facts about their case during the mediation session.
This is very important because mediation is a good time for the parties to begin really assessing their exposure and risk level moving forward. Parties need to be honest with themselves and be mindful of all things out of their control that can affect their outcome. Mediation and pre-trial negotiations are the most control parties will have over their situation. It will also be very important to factor in legal costs. They only go up for most parties as time goes on. As the risk of negative outcomes increases moving forward, legal costs will push that risk even higher. Consider that it is often less expensive to make a lower demand/higher offer to the other party to save on future costs!
Feeling Heard and Lowering Hostilities
An important part of the mediation process is giving the parties the opportunity to air their grievances (respectfully) in a controlled environment where they each have the opportunity to be heard and listen to each other, probably for the first time since the trouble began. The parties might disagree with each other deeply, but on some level, we all just recognize that we are people that might be affected by the circumstances no matter how we feel about what the resolution should be. Having the opportunity to share and listen allows both parties to become a little more open to trying to put the matter to rest this way, opening the door to much more productive future settlement discussions.
Partial Resolutions and Increased Chance of Settlement
In instances where mediation concludes without a full resolution of the dispute, there are a number of ways the process can still increase the chances of settlement in the future. Sometimes, the parties can reach a partial settlement, where they eliminate parts of the dispute by agreeing to a certain percentage of the settlement terms. In other scenarios, where perhaps the parties both need to figure out certain values, and necessary procedures, carry out certain actions before things can be resolved, etc., the parties can write up a memorandum of understanding. It is a less formal agreement spelling out the next steps, usually with the intention of coming back to mediate the remainder of the issues at a later date. Even if none of that happens, the parties usually leave their first mediation session, having exchanged important information, exchanged some settlement proposals, and possibly opened things up and released some of the tension between them. All of these factors help pave the way for the parties to reflect on the progress made, analyze their situation again, and re-approach the settlement discussions from a better, more informed perspective.
Don’t be afraid to give mediation a chance, especially early on!