ADR CORNER
ADR CORNER
The Mediation Glass Is Always Half-Full – Even If You Don’ t Settle, You Can Still Win
ALFRED LASORTE JR
Mediation works, and results in settlement more often than not. But even mediations that don’ t settle can benefit the parties in many ways.
I know what you’ re thinking.“ Spare us the glass-half-full speech, Al. Mediation that doesn’ t settle, fails. Just admit it.” I respectfully disagree. The beneficial takeaways for both sides from an unsuccessful mediation can be many.
1) At mediation you learn a lot about the other side’ s case. Before mediation, often the only place the opposition’ s positions are spelled out is a bare-bones pleading. It’ s helpful when opposing counsel in mediation elaborates and puts some dressing on those bare bones.
Often, counsel present arguments in mediation that they had downplayed previously or maybe hadn’ t mentioned at all. I’ ve seen many mediations where parties only came to fully understand the other side’ s position by hearing counsel’ s opening presentation. This new realization can lead to settlement. But even where it doesn’ t, counsel and client are better equipped to confront those newly-realized arguments as they move toward trial.
2) Mediation is an opportunity to work on your case- demonstrative exhibits, orders of proof, etc. Mediators are busy throughout mediations, working nonstop with one side, then the other, with no“ down time.” But when the mediator is in the“ other room,” lawyers and their clients do have down time. Use it!
As a former trial lawyer, I know all about reviewing deposition transcripts, case law etc. during mediations. Trial lawyers’ schedules are so full that this down time may be the only time you’ ve actually got nothing else to do and can concentrate on this case.
Spend this time prepping your client for their trial testimony, reviewing expert reports, or whatever other trial prep you will need if the case doesn’ t settle. In most of my mediations that haven’ t settled, lawyers on all sides have left the room better prepared for trial than before mediation by using mediation down time productively.
Also, a mediator with long experience in your type of case can be helpful. The mediator may not be impressed with some arguments that had seemed bulletproof to you before mediation. If the mediator isn’ t persuaded, the judge or jury might not be either. Use this input to redirect your emphasis away from weaker claims, focusing your trial presentation on points more likely to be winners. Your case at trial will likely be more effective.
3) You can set expectations, useful in subsequent settlement discussions. Sometimes cases fail to settle at mediation because parties are legitimately surprised by the large size of plaintiffs’ demands, or the low size of defendants’ offers, and they just can’ t“ get there” during the mediation. But we’ ve seen many cases in which what seemed at mediation to be shockingly large or small becomes“ normalized” over time, with further discussions ultimately leading to settlement.
If the other side seems shocked at your position at mediation, maybe you’ re being too aggressive. But maybe they just need more time to get used to the idea. If so, a later settlement closer to your number can result.
4) You can identify errors in the other side’ s analysis and hopefully correct them during subsequent settlement discussions. A party’ s unrealistic settlement position at mediation can be due to misapprehension of the applicable law or facts. If mediation fails, afterwards take the time to send opposing counsel your case law or highlighted deposition excerpts that they may be overlooking. I have seen such post-mediation efforts result in later settlement many times.
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5) Your client gets to see you in action. Often, lawyers represent clients on only a single case. Seeing how prepared you are for mediation and how persuasively you present their case can be eye-opening for clients and build their confidence in how you will perform at trial. Note- this can also backfire. Let them see you be persuasive, not abrasive.
6) You and your client can use a failed mediation to focus on trial prep. Nothing helps a lawyer resign themselves to the case needing to be tried better than a failure to settle at mediation.
Trial prep is expensive and timeconsuming. Before fully exploring settlement via mediation, lawyers and clients can suffer a bit of cognitive dissonance as they spend time and money prepping for trial.( Client to lawyer:” Why are we taking all these depositions and hiring all these experts? It’ ll all be wasted if we just end up settling.”)
When you’ ve given mediation your best shot, yet you and your opponents remain miles apart, you and your client can resign yourselves to the unlikelihood of settlement. This can truly help both lawyer and client focus on the need to push forward toward trial.
See? The mediation glass really is half full!
For additional ADR tips and resources, go to https:// www. palmbeachbar. org / alternativedispute-resolution-committee /
After a long career at Shutts & Bowen LLP as a commercial litigator specializing in real estate and general business cases, Mr. LaSorte now acts exclusively as mediator and expert witness through his own firm, Alfred A. LaSorte, Jr., P. A. d / b / a LaSorte Mediation.( www. LaSorteMediation. com). Mr. LaSorte can be reached at( 561) 286- 7994 and Al @ LaSorteMediation. com.