Conflict Resolved

I spent most of the my day yesterday in mediation. It was confidential so I can't discuss any of the specifics, but it was successful in its outcome. What I can say is that it was a case that had been litigated up until mediation for over two years. Both sides had risk. Both sides had strengths and weaknesses. In the end, both sides had to give a bit more than what they really wanted to. But also in the end, both sides had more say and control than what they would have if it had been given to a jury.

There are certain things you can do both as a client and an attorney to prepare for medition that will help in having a successful outcome. These ideas are by no means complete but are some thoughts from what has worked for me and my clients.

First things first, know your case. This doesn't mean your side only, it means try to understand your case from the other side as well. Obviously, there is a dispute or you wouldn't be here. Try to objectively discern if the otherside might have a valid point. Also, not all facts are critical at mediation. You may have lived with your case for a few years but trying to explain the details of the front door to your cabin that is 47 miles down a rutted dirt road may not be salient to this process. It's like the details of a book versus the same story in a two hour movie. I once took a screenwriting class that went over how to adapt a book to a movie. The instructor said the following: "Read the book carefully from cover to cover then put it down. Write out what you remember from it--the main points. If you can't remember all the details they were most likely not that important." So know which facts are critical and which are merely background.

I think it's also affective to research any comparable jury verdicts in your area to some degree. I feel this was probably more important to see what value is in your particular area a few years ago. Area distinctions are becoming less dramatic than they were fifteen years ago. The internet has made the world smaller. Just because I live in Utah or Oregon should I take less that a similar case that is in California or New York? So research cases from your area and beyond. See what's out there.

What are your alternatives to settlement? Will this be your last bite of the apple before litigation? Can you try again if it doesn't wotk out? Could another form of settlement be suggested such as arbitration? Timing is every thing. Some case take a while to become ripe. The right answer at the wrong time is still the wrong answer. Don't short circiut the process of getting to quick to mediation and don't short circuit the process once you are at the mediation or you will most likely take less than you would have otherwise. It is a dance that has several components. Patience still can be a virtue.

Another helpful process to go through with your clients is to explain to them how long and how expensive it will be to go to trial and what outcome is possible at trial. If they could settle today for $500,000, is it better or worse than going to trial a year down the road and spending and additional $50,000 with the amount on the table today at risk to potenetially get another $500,000? The answer may be yes or no but you need to honestly make an assessment.

When preparing both you and your client, make sure your are on the same page in most critical respects. You don't want an additional dispute to errupt during this most critical time of potential settlement at mediation. If you feel it coming on, politely ask the mediator to step outside and work through it until you reach an understanding with your client. Remember to listen to your client as they are the ones that have lived thrugh it.

It is also important ahead of time to explain the mechanics of the system (especially how a mediation session goes) so they are not surprised. Explain to them that the mediator is not the judge but someone that can hopefully facilitate a resolution. They are not there to tell you what to do. You and your cleint get to decide that together.

Like I said, this is by no means an exhaustive list. It is just a list of thoughts I have from spending my day in mediation that can hopefully better help in getting conflict resolved.

What We Hear

"The litigious spirit is more often found with ignorance than with knowledge of law." -Cicero

"Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser--in fees, expenses and waste of time." - Abraham Lincoln

"The entire legal profession--lawyers, judges, law professors--has become so mesmerized with the stimulation of the courtroom that we tend to forget that we ought to be healers of conflicts. For many claims, trials by adversarial contests must in time go the way of the ancient trial by battle and blood. Our system is too costly, too painful, too destructive, and too inefficient for a truly civilized people." -Chief Justice Warren E. Burger

Don't get me wrong, litigation does have its place and time. Mediation is not always preferable to litigation. Litigation is a good place for those who won't listen and need to be held accountable. Further, through our adversarial system there is some degree of predictability through stare decisis or precedent which establishes some fariness. It also tends to level the playing field where a party may be unreasonable. This is why we have the black robes. My point is this: Litiagtion should be a last resort. Learn to listen.