Firm Blog


Posted by: Victoria Santoro

We so often in our society trumpet the goodness inherent in compromise, but how many people truly practice it in their lives?  The mediation process can be a terrific, cost-effective and less confrontational means of settling a case prior to trial.  Oftentimes, a mutual decision to mediate indicates both parties’ true willingness to come to fair terms.  Of course, court ordered mediation might result in somewhat unwilling parties, a situation clearly that at times does not create the best atmosphere for settlement. But, in most instances, when two (or more) opposing parties both decide to mediate a case, the outcome can be optimal, for four reasons.

First of all, the time involved in preparing a case for trial (expert disclosures, witness subpoenas, motions in limine, etc.) is simply overwhelming.  We often think of expenses in terms of dollars spent, but one of the biggest costs of moving towards trial is time.  Maximization of time is a popular topic and, if both parties are willing, mediation can save substantial amounts of what is extremely valuable time to both the clients and the attorneys.  Not only will the parties save what could be weeks or months in preparation time, but in many cases can resolve a case in one full-day mediation, as opposed to a weeks-long trial in court.  Even when a case does not settle on the first day of mediation, it often simply requires one or two additional days.

Going hand in hand with the above considerations are the very significant financial implications of moving towards trial.  Based on the outcome of discovery and how the parties view the most important parts of the case, mediation can save your client (plaintiff or defendant), tens of thousands or possibly hundreds of thousands of dollars.  Sufficiently representing your client should certainly include an understanding of their current expenses and a willingness to keep their costs down.  Attorneys should conduct a cost-benefit analysis, if they have the option of mediating a case, because often the cost of expert witnesses alone substantially reduces a client’s net recovery.

Subsequent to a successful mediation, there are intangible outcomes that are lacking after a trial.  At mediation, parties are able to meet in a room face-to-face, calmly, without a judge and jury deciphering their words.  Frequently, what this means to a plaintiff is that they receive an apology.  There are few things I have seen in my few years as a lawyer more powerful than an apology.  It can be more valuable than a settlement and can have a deep and profound positive impact on a plaintiff as they move forward with their life.  Similarly, at mediation, the emotional impact of a trial is avoided.  Each side avoids having the weaknesses in their case exposed to a judge and jury.  Quite simply, after mediation, clients often feel as though the “right” outcome was achieved, because they were able to be heard.

If liability is reasonably clear, a good mediator with a strong sense of the case will be successful in helping the parties reach a true compromise.  In terms of a financial settlement, both sides can sometimes leave the mediation process mildly disappointed in the result and yet, overall, feel that the outcome was fair and considered. (Other times, of course, you must simply walk away and bring the case to trial.)  This is a triumph of the mediation system and is the definition of a compromise.  We were all taught as children that compromise is a necessary and valuable part of life, and attorneys should take that lesson with them as they shepherd their clients through a case.

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