How Do You Know if Mediation “Worked?”
Bob Halagan, Halagan Law Firm, LTD.
Apr 25, 2019
One of the challenges of mediation is the uncertainty that comes with having to deal with any unpleasant confrontation. Parties and sometimes their lawyers get caught up in the emotions inherent in litigation conflict and frequently leave mediation, with or without a deal, feeling unsatisfied. So, what make for a “successful” mediation regardless of the outcome?
Did you get a fresh perspective on how others would view your case?
In litigation, like most of life, we have a keen sense of what we believe is the truth of what happened that got us there. We believe our own stories and our perspective is colored by our own experiences, biases and desires. This can be as true for lawyers as it is for clients. But is the view we have the view someone else, totally disconnected from the situation, like a judge or jury, would have? At some point a neutral (more or less) party will decide your case and they will bring their own perspective to the facts as the parties are able to present them.
One of the most valuable roles a mediator can play is to give you their reaction, unvarnished and disinterested in how your version of the facts may be received. Even if you don’t think their perspective is correct, if nothing else, it will tell you what you need to work on. It is that second set of eyes that can be invaluable in accurately assessing how that neutral decision-maker may react to your side of the story.
Did you gain a better understanding of how the other side sees the world?
The converse of that point is to be able to see how your opponent sees things. Again, you may not agree, but rather than reject out of hand their version of the events, listen carefully. See what the key points are that support their perspective. Understand how those points may play out at trial or what you need to do to weaken the strength of those points. Mediation, even if it doesn’t result in a settlement, is an important part of the discovery process that allows you to understand what your opponents are relying upon to make their case and what you need to do to challenge those facts.
Did you get a clearer understanding of your best/worst case scenarios?
There is no lawyer or mediator who can confidently predict the outcome of any case that is going to get decided by a judge or jury somewhere down the road. I once heard a very good trial lawyer say that every case is 50/50 and I agree with that sentiment. What you should be able to predict however is how bad or how good the case can get for you. You always need to know your bottom line and a mediator can play an important role in ensuring that you understand that. It’s fair to expect that when you are at a point of having to make a decision on whether or not to settle, that you know with confidence the risk you are avoiding by making a deal and ending the case.
Did you get to a point where you feel more confident you know the other side’s bottom line?
There is no way to know for sure what the other party’s bottom line is, but the painful nature of negotiating during what can seem to be an interminable day of mediation is one factor that helps give you some confidence that the numbers you are hearing from the other side are in fact “real” numbers that they will settle for. Not many people can go through mediation and not get serious about getting things done. If your day has been short and stress-free, then maybe you haven’t really gotten there. But if you’ve spent the day and you feel like a used dish-rag digging the last dollar out of your pocket, you can have some confidence that the other party feels the same way.
If you or your client need mediation services from someone who understands both sides of the process, please feel from to contact me at firstname.lastname@example.org for professional mediation services.