Why mediation ? Because “ you make the call !” ( IBM NFL football ads from the 1980s .) As stated , the trial verdict is an unknown and usually surprise determination by strangers to the dispute . Mediation also provides a means to test the case on the way toward resolution by consensus of the parties themselves , versus the consensus of strangers in a court room .

Mediation is another venue that the parties meet together separately in the same environment . Together . Separately . The process allows each party to test themselves and the other party . Generally , in tort litigation , the mediator meets both parties separately , as each party challenges the memory , character , fortitude of themselves and of the opposition party ( s ). The testing is facilitated by the mediator shuffling back and forth to the confined quarters of each caucused party , and the mediator conveying information from the opposition .

Initially , the factual foundation is cobbled as best it can with what can be agreed . At the same time , the opposite ends of the value of the case are published to the indignation of the opposition . As the exchange of demands and offers slowly proceeds in one-half-hour or hourly increments , the factual foundation is tested and buttressed by the legal and strategic theories of the case . During this time , the “ what ifs ” are presented and confronted and analyzed . With the development of the facts and legal and strategic theories , and the unease of the “ what ifs ,” the clients are tested on their real intention regarding the dispute . Is it the principal ? Is it money ? What is

the value of the money now or later ? What is the value of money ? What is the value of time ? Are there principals that can be addressed without money ? An apology perhaps . Empathy . Understanding . Or does the matter just need to be tried to other strangers , the jury ?

Why mediation ? The mediation lets the parties test the value of the case with the slow , steady coalescence of the real settlement value from each end of the demand / offer spectrum . As stated , hard bargaining and posturing occurs by the oppositions ; this is the posturing that the third party mediator is present to filter and massage . To this point , the parties and their lawyers have been zealously representing their positions and reasonable discussions can become unproductive position disputes without the filter of a third party . A third party , the mediator that can calm the emotions , the mediator that can edit the adjectives , the mediator who can be a sounding board - to let what needs to be heard , be heard before it is heard , so it can be heard as intended . Positivity . Productivity . Placation .

That is why mediation . In my 30 years of litigation , and dozens and dozens of jury trials as an insurance defense attorney and more recently as a personal injury plaintiff attorney , there are few mediations that were unsuccessful from the standpoint of educating the parties regarding the likely outcome of the determination of damages by a jury . Mediations that have difficulty reaching resolution likely involve disputes regarding fault or principal . But on damages , mediations invariably are enlightening .

Our team of consensus builders are proven , skilled collaborators and creative problem solvers . They understand the importance of the facts , nuances of the law , and emotions of the people involved . As mediators , their one goal is to create a mediation process that allows all parties to work through disputes and come to a mutually acceptable agreement - resolution .

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