A New Approach to Conflict Resolution
How often have you seen a jury do something completely unexpected? As a trial lawyer, have you seen juries disregard contract provisions, make decisions based on empathy or make punitive decisions out of anger or distrust of the corporate conglomerate? All jurors bring some level of risk to litigation. All too often the fate of a client, its financial exposure, and the precedent the decision could create within the company is determined by 12 strangers, each with their own implicit biases and value systems. The risks inherent in litigation are all too real when it comes to a company’s bottom line.
ADR can play a valuable role for corporate clients in evaluating disputes well in advance of trial. Mediation is a useful tool to assess your risks, look at evidence from a different perspective, size up your adversary, and get a neutral third party’s insight on the strengths and weaknesses of your case. The more information you know, the better prepared you are before you turn the case over to a judge or jury for decision. Aside from settling a case, there are benefits to keep in mind when talking to your client about why to mediate.
Four Benefits to Consider When Talking to Your Client About Mediation
- Looking at Evidence in a New Light. Listening and keeping an open mind during mediation helps you view your case from a different perspective, which can shape the way you handle the case. Hearing the other side’s version of events may reveal facts or legal arguments you had not previously considered. What you thought was a minor piece of evidence or an immaterial witness may become more critical once you learn more about your adversary’s strategic position. Looking at evidence in a new light can spark ideas on how best to defend a case or lead you to conduct discovery on issues you were either unaware of or had not thought about. Mediation can reveal facts or witnesses that clients may not have considered. And the mediation process can be useful in better understanding what expert testimony may be needed or how to best defend against the other side’s expert. Taking the opportunity to view the case from your adversary’s perspective and look at the evidence in a new light could change your client’s strategy. You may also discover that there are fewer issues in dispute than initially expected, which helps you to narrow and focus the case for motions and/or trial.
- Evaluating your Opponent. While the discovery process allows you the chance to meet the opposing party during depositions, mediation provides another opportunity to gain deeper insight into your opponent. How reasonable is the opposing party? What is driving his or her decision-making process? Money? Emotion? Pride? Justice? Not only can opening statements in mediation give you a window into the opposing party’s personality or motivations, but the other side’s negotiating style and grasp of reality can be important to how your client makes strategic decisions. How is the other side valuing its case? What do they view as their best evidence or their strongest legal argument? Knowing this will shape your client’s approach to a potential settlement. Mediation can also be enlightening when it comes to sizing up the opposing counsel, how they communicate with their client, and whether they have a realistic view of the case and how a judge or jury may decide the dispute. Seeing how the other side views the case is important. It provides insight into key evidentiary issues and helps you better understand what motivates the opposing party, which aids your client in developing a settlement strategy. Even if a case cannot be settled at mediation, gathering more information about your opponent can only help you to better prepare to litigate the case at trial.
- Gaining the Insight of a Third-Party Neutral. Bouncing the case off a third-party neutral helps your corporate clients gain insight from an independent and experienced professional. Evaluative mediators who can be frank with your client during private caucuses about the issues and the evidence can provide reactions to your client and communicate things you may not be comfortable telling your client yourself. Some advocates do not feel comfortable discussing weaknesses with their client for fear of being perceived as either not believing in the case or not being a fierce enough advocate for their client’s position. Hearing it from an experienced third-party neutral can be more palatable for clients than hearing it from their own lawyer. Information gained during the mediation process can also help you refine your presentation of evidence, focus your arguments, and better prepare you for trial.
- Exposing Risk Factors. Mediation is a safe and confidential environment for clients to discover and assess the risks of their case. A knowledgeable and credible mediator can help your client understand what risks the client will face at trial. Likewise, the mediator will make sure your adversary is well aware of the risk factors in proceeding to trial. Assessing those risks and the impact they have not just on the case but the resulting business implications is valuable. Corporate clients are particularly attuned to how the dispute will affect their business, beyond the time and expense of litigation. Understanding the risk factors can better position a client to appreciate their best and worse case scenarios at trial. At times, adverse decisions can be devastating to businesses beyond just the cost of litigation. Taking the time to consider the impact of an adverse decision versus a negotiated resolution is useful. Will a loss at trial have far-reaching implications for the future of the business? Could it impact future claims against the company? What could a loss at trial cost the company in terms of future policy-making, employee productivity, morale, or profitability? What is the worst-case scenario at trial and how much is that worth to avoid? Using information gleaned during the mediation process can help you and your client navigate these issues. Weighing risk factors, the likelihood of achieving your best-case scenario and at what cost can be insightful for settlement value and strategic decisions in the case.
The benefits of ADR expand beyond pure settlement. Mediation is an inexpensive way to see the other side on a different level, to view the evidence in a new light, and to better understand your adversary’s approach so you can focus your strategy accordingly. It might reveal new information that changes the way your client views the case or uncover new theories or defenses. Using an intermediary to talk through the evidence and potential risk factors can give you a fresh perspective on the case and give companies an opportunity to take a serious look at the short and long term impact of the case on the company’s bottom line. Since litigation can take a toll on a company far beyond the immediate effects of litigation costs and a judgment, giving serious thought to the business implications may affect decisions on conflict resolution. Mediation is also a better approach if the parties plan to have any ongoing or long term future business relationship, as nothing fractures a relationship like a trial. While juries can be unpredictable, and some trials are unavoidable, the use of mediation can play a valuable role in better preparing you and your client for that uncertainty. The more information you know, the better prepared you will be.