When I recommend mediation to my clients, they often react with surprise, assuming the process will be nothing more than an expensive waste of time. They believe that the inability of the parties to settle a case on their own with the assistance of competent counsel means that dedicating any time and resources to a formal process of voluntary dispute resolution, like mediation, is unlikely to be productive. However, clients who forego this option often miss their best opportunity to resolve their case, and an opportunity for considerable time and cost savings when compared to continuing litigation to trial. Mediation, provided it is facilitated by an effective mediator, is very often successful, even when the parties begin the day very far apart in terms of their settlement goals.
Why is mediation so effective? Because mediation illustrates for the parties just how difficult it can be to convince a neutral third party that you should win your case. Typically, the parties have not yet been required to convince anyone—except, arguably, the opposing party—that their position is the correct, or better supported one. They don’t expect the other side to agree with them, and they are inherently skeptical or distrustful when the opposing party suggests there may be flaws in their interpretation of the facts or the law. Mediators, however, have no vested interest in the dispute, and therefore, their evaluation of the claims is ostensibly neutral and unbiased. When you couple that with the fact that most mediators are either attorneys with significant experience in the area of law involved in the dispute, or retired judges, their unbiased evaluation of the case, and of each party’s likelihood of success in court on various issues, carries far more weight and is instantly more credible than the opposing party’s presumably biased opinion. Thus, if a credible, experienced mediator tells a party, who may have been convinced that his case was a strong one, that he, in fact, has little chance of succeeding on certain claims, it is often very effective in persuading such a party that it may be smarter to consider a compromise, rather than to staunchly stick to his position. A mediator is particularly effective if he or she is able to convince both parties to the dispute that they ought be at least somewhat uncomfortable with their chances of success should they choose to proceed to trial, and to determine that it is far better for them to each give up something now, rather than risk the uncertainty of trial. That discomfort can be a powerful incentive to settle the case.
For more information regarding mediation, and how to use it to your best advantage, please contact The Strong Firm, P.C.
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