It’s Not Always About Settlement: Five Compelling Reasons to Mediate

by William Atkins


The overarching purpose for scheduling mediation is to get a case settled, so guiding parties toward a resolution at mediation is every mediator’s primary goal. With motivated parties and a skilled neutral, a high percentage of cases do settle.


But what about the cases that do not resolve? You may be surprised to learn that there are still benefits to mediation. This article addresses five ways that mediation benefits the parties, even if the day ends without a resolution.


A Fresh Perspective


One of the advantages of mediation is that it gives the parties and their lawyers access to a fresh perspective on the strengths and weaknesses of their case.  An experienced neutral has mediated hundreds of lawsuits, and likely litigated many more. Experienced neutrals keep up on current trends and often have a good feel how a jury may react to your case.  A lawyer armed with a fresh perspective from a neutral may recalibrate his or her negotiating strategy or present the case differently should it go to trial.


Sometimes that fresh perspective can help a lawyer deal with a difficult client. In a perfect world, clients listen to their lawyers. We don’t live in a perfect world. Some clients are unreasonable and refuse to listen when their lawyers point out weaknesses in their case. That tension can strain the attorney/client relationship. Experienced neutrals can often develop a good rapport with the client and deliver the “bad news” they refused to accept from their lawyer. That is often the catalyst for reaching resolution at mediation.


Opportunity to Assess Your Risk


Another mediation benefit is that of risk assessment.  Prior to mediation, the parties may have some sense of how each side is valuing a case, but that sense is rarely based on hard evidence. As mediation unfolds, the parties exchange numbers and other information. Somewhere along the way, each side usually gets a better sense of how the other side values the case. At the end of the day, a plaintiff should have a very good sense of how much money they are leaving on the table; conversely, a defendant should have an equally good sense of what they would have to pay to resolve the case.


That information is invaluable in assessing the risk of going to trial, especially in complex cases where trial expenses will be significant. Understanding how the other side evaluates risk can inform how the parties approach a trial. The parties may consider entering into a high/low agreement – negotiated based on their mutual appreciation of risk – before striking a jury or before the jury returns a verdict.


An Opportunity to Be Heard


Many lawsuits arise from tragic circumstances.  Grief, anger, fear, and helplessness – these and other emotions often simmer just below the surface in the plaintiff’s room. Some people may be unable to move on to problem-solving until they have had the opportunity to confront the one who harmed them. Mediation gives a plaintiff struggling with his or her emotions a chance to sit across the table from the defendant and be heard. After the aggrieved individual has had a say and been acknowledged, he or she may be ready to move on to discussing resolution. Even in instances where a case doesn’t resolve at mediation, the fact that the plaintiff has been heard may set the stage for future resolution.


Less Animosity Between the Parties


The practice of law has become increasingly contentious in recent years. Today most communication is conducted electronically, and there are fewer opportunities for in-person meetings, which may explain the aggressive personas many lawyers adopt in litigation. Civility often feels like a lost art.


Custom and practice dictates that everyone be on their best behavior at mediation. It is often the only time when lawyers and their clients may sit across the table from each other with a common purpose. Even when the parties impasse at mediation, a productive in-person session can lower the level of animosity between the lawyers and set the parties on a path toward eventual resolution.


An Increased Chance of Settlement


Especially in complex cases involving catastrophic injuries or death, it is not uncommon for the parties to reach impasse at mediation despite the best efforts of everyone involved. Everyone usually has a very good idea of what it would take to get the case settled, but it just is not possible to bridge the remaining gap. The mediator can remain involved, working with the parties to get to a successful resolution using a “mediator’s number,” communicating new numbers or, on occasion, helping the parties find creative solutions that do not involve money.


Sometimes an apology from the defendant or a commitment to take corrective actions to prevent future incidents may result in a plaintiff accepting a monetary settlement that they initially rejected at the end of a mediation session. The parties can also use structures to minimize tax consequences and, especially in cases involving minors, maximize the long-term benefit of a monetary settlement.


As you can see, there are compelling reasons for mediation besides settlement, and the process has collateral benefits even in those instances when the parties reach impasse. Even with a challenging case where compromise seems unlikely, these benefits may make mediation well worth your time.


Bill Atkins As an attorney, William Atkins has devoted the bulk of his career to representing clients in personal injury and medical malpractice cases, including difficult, out-of-the-ordinary cases like those involving commercial motor vehicle accidents, sexual abuse at youth services organizations, and a wrongful death claim against a daycare center. As a mediator, Bill uses his experience to help him identify the core issues that should motivate each side to resolve the case. Because he has handled a wide variety of matters, Bill is also uniquely qualified to facilitate discussion of substantive legal issues that may determine the outcome at trial if the case is not settled at mediation.