Why Mediation? -- How Lawyers Can Help Clients Understand the Value of Mediation
Attorneys and clients often wonder why mediation is worth considering. The parties often have tried to resolve their dispute before involving legal counsel and the attorneys often have tried again before starting down the litigation path. Although many attorneys have seen the utility of mediation repeatedly, it can be hard to explain to clients why it might be worth the expense to nevertheless try for a mediated settlement. This post offers some tips that an attorney can offer:
The parties get to decide their own fate. They cannot be forced into any decision, so there is no risk of an adverse outcome the client does not want.
It offers a reality check on the risks of litigation. Having an independent mediator involved can help the parties get out of any communication challenges they have faced, without risking the attorney/client relationship.
Learn about the other party’s case. One can often get a sense of the other parties’ legal position without giving up too much of one’s own strategy through a mediation session. It’s simply a matter of asking questions and digging into the issues the other party and legal counsel raise. Showing interest in the other parties’ position not only increases the chances of successful mediation by better understanding what matters to the other party (and what doesn’t), but also allows one to better anticipate what the other party will focus on in any subsequent litigation if mediation fails. (Although mediations are confidential, an attorney and client can still factor into their strategy what they heard from the other party in a mediation.)
It offers a client a “day in court”. Clients often talk about how frustrating it is that for months after starting a lawsuit they really don’t get to tell their side of the story. Mediation can give a client his or her or its “day in court” without the drawn out process of litigation. The client has the opportunity to provide an account to the mediator of what’s in dispute and how the client was wronged in a direct way that even a trial doesn’t afford.
It is more likely to improve rather than damage the relationship between the parties. Parties that mediate are frequently able to avoid the damage to the relationship that litigation can cause. It is especially useful if the parties have any hope of future business together. They may be able to learn what went wrong—whether miscommunications or misunderstandings were a cause of the dispute. Moreover, instead of being asked to tell their side of the story in the extreme, they are afforded an opportunity to consider where they have common ground with their opponent and to consider “win/win” outcomes.
Mediation can save resources. It can cost much less than litigation. It avoids the drag on time of, and psychological wear and tear on, staff and executives to participate in depositions, discovery and trials. It saves on legal fees. It resolves the dispute more quickly and allows the parties to move forward instead of looking back. Parties sometimes fail to evaluate the opportunity costs of litigation, although those costs can be substantial. While focused on a trial (even during discovery), a variety of business opportunities could be missed.
Consider these statistics from the Department of Justice regarding the benefits of mediation (updated as of June 24, 2020).[1]
SUCCESS RATES 2017 Alone
Voluntary ADR Proceedings 75％ Resolved
Court-Ordered Proceedings 55% Resolved
QUANTIFIED BENEFITS OF ADR
Litigation or Discovery Expenses Saved $15,521,275
Days of Attorney/Staff Time Saved 13,886 Days
Months of Litigation Avoided 1,967 Months
DOJ SUPPORT ADR
Expenditures for Mediation Services $1,284,149
Number of New Cases Authorized for ADR Funding 502
[1] See: https://www.justice.gov/archives/olp/alternative-dispute-resolution-department-justice.