What is the best way to resolve disputes? We are lawyers, after all. We file lawsuits. Fair enough, but what then? The good old-fashioned way is to try the case, but that means risk; it is expensive in both dollars and lost time; and it is stressful. Moreover, after the judge or jury has spoken, at least one party is unhappy, and often both parties feel short changed. After all, justice is pretty expensive, and in this country, you won’t be compensated for whatever justice you were able to achieve in court.
Traditionally, courts have required parties and counsel to attend settlement conferences, recognizing that there are insufficient resources to try all the cases. These settlement conferences, conducted usually by a judge other than the trial judge, work. It may reasonably be asked, however, just how pleased the parties and counsel are with the settlements. After all, the strongest settlement tool the settlement judge has is to opine on what will happen if the case goes to trial, telling each party to settle rather than risk either losing or getting less than desired. About the same level of happiness results from settlement conferences as from trials. In either case, it is pretty much an up or down result. There is no room for creative solutions, and there is no attention given to the emotional pressures that led to litigation in the first place.
Mediation beats the other two alternatives hands down. Mediators are trained to spot emotional, blocking issues and get them out of the way before tackling the money issues. For example, in probate cases, long-term sibling conflicts tend to bubble up. I call it the Tommy Smothers syndrom: “Mom always liked you best.” Underneath these resentments there usually co-exist repressed feelings of mutual regard. The same is true in most business conflicts. In a mediation, relationships can be restored as a part of the settlement. That doesn’t happen in court
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Mediators are also alert to the possibilities of finding solutions that satisfy both sides – solutions that would be unavailable in court. A good example is a patent infringement case where the stakes are high. Rather than betting the farm at trial, parties come to realize that a license agreement of some sort needs to be worked out.
My style of mediation is not to talk about money early in the mediation. The “let’s cut to the chase” approach usually creates a spread between demand and offer that is difficult to bridge. Instead, usually in caucuses, I probe the strengths and weaknesses and the underlying interests of each side until I sense where each side may be willing to settle. At that point I can begin urging the parties to settle within a reasonable range, knowing they are ready to do so.
In my experience as a mediator, I have been very impressed with the competence of counsel during the mediation sessions, especially with the recognition by counsel of the desirability of settling the case. I find it rare that a lawyer wants to run up the fees rather than settle.
And how about the clients? The wonder is that clients stop talking to each other when litigation begins. They are under the mistaken impression that it is improper for them to communicate, and in some cases, their lawyers tell them not to talk to each other. Yet clients who have businesses to run learn early on that litigation is not a profit-making venture. Given a choice, most clients would go for an early, fair settlement without the expense and risk of litigation. I am reminded of a law firm that was engaged in full time litigation for one client when, quite by happenstance, the presidents of the two litigants talked to each other, settling the case out from under the lawyers. The law firm collapsed.
The moral of that story is to remember that cases belong to the clients, not the lawyers, and not the courts. At trial, and at judicial settlement conferences, the client is not in control of the process, while in mediation, the client controls the entire process. When a case is settled in mediation, both sides and their lawyers are typically delighted. All sense of risk and anxiety is gone, supplanted by a feeling of satisfaction and relief. That doesn’t happen in either the settlement conference or trial.
Cases will continue to settle one way or another, as they always have. Yet, the trend today is toward more than delay reduction. Now the drive is to achieve satisfaction and to reduce the direct and indirect costs of trial by combat. Far and away the best way to do that is to hand the case back to the clients in a mediation.
