Mediation in Litigation. The Good. The Bad.

I am not generally a fan of using mediation to resolve disputes. But, if you face mediation (such as in court-ordered mediation), the focus needs to be on whether you believe you are holding the stronger position or the weaker position in the dispute. In short, if you hold the weaker position, you will probably be better off with the result you get in mediation. If you hold the stronger position, you likely will pay a price and lose ground with the result.   This strong / weak distinction ought to be a litmus test as to whether you use mediation, and also give you pause to consider who you choose as the mediator. [Of course, I also realize that in many cases each party believes his or her side reflects the stronger, more meritorious position.]

As background, mediation uses a third-party neutral person who, as the center point, helps the opposing parties possibly find a way to resolve and settle a dispute. The mediator is most often an experienced lawyer. Typically, the mediation is scheduled for an entire day in order for there to be a long, repetitive, back-and-forth effort by the parties to arrive at a settlement.

The Up-Side for the Weaker Party —   If your client holds the weaker position in the dispute with less than 50-percent odds, mediation can enhance your client’s outcome. My experience has shown me that the bulk of mediators generally will move the parties in the direction of simply cutting the case in half. That is, these mediators will essentially split the value of the case in half equally, or almost equally, between or among the parties without the mediator voicing his or her opinion of the merits of the two sides. This is a Solomon cut-the-baby-in-half approach. This means the side with the stronger position is relentlessly pushed to a mid-point, substantively equalizing the odds to 50-percent for each side.

So, What Does the Stronger Party Do? — The above 50-50 equalizing of the mediation result generally suggests the stronger side should avoid mediation, if possible. But, if not possible, the stronger side needs to insist on selecting a mediator who, during the course of the day’s mediation, will give the parties his or her reaction, judgment or take on how the mediator views the merits of the litigation or dispute. As to the stronger party, this mediator feedback can help downgrade the weaker side’s overvalued assessment of their case. This downgrading effect also can be a productive, beneficial aspect of the mediation even if the case is not resolved in the mediation.  In other words, if you are the stronger party, focus on finding a merit-based mediator. Also, as the stronger party, realize you most likely will not settle the case in the mediation if the result is merely a Solomon cut-the-baby split.

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