When I was in law school 40 years ago, there was not much discussion about “alternative dispute resolution.” Mediation and arbitration are dispute-resolution alternatives to trials that have become widespread in the last 20 years. Mediation is now required in most cases that are filed in court and is used in our practice frequently.
Last Friday, I was in a mediation for about four hours, attempting to settle one of my medical negligence cases. The mediator was excellent, and the case was settled. The mediator was a veteran lawyer who had been practicing as long as I have and is well-respected in the legal community.
He is my favorite mediator, and I am not alone in my assessment of him. Some mediators begin talking about lunch as soon as we arrive, which means that they think we are going to be there all day. Last Friday, lunch was not even offered, which was acceptable because we were there to work and not eat.
I went to St. Louis about a month ago to a mediation conducted by a retired judge from St. Louis County, and I did not think he was very good. They began talking about lunch soon after arrival, which is usually not a good sign.
A good mediator will not choose sides, but I thought the St. Louis mediator was obviously trying to drive a settlement to help my opponent. The good thing about mediation is that it is voluntary, and the mediator cannot make you settle the case. His role is to facilitate settlement. I am always ready and willing to hear what the mediator has to say, and I tell my client to listen to what the mediator says because he or she does not have a stake in the outcome of the case.
That being said, the retired judge was trying to convince me that the case should be settled at a much lower amount than the case was worth and was attempting to use the facts of the case that he had spun to convince us to settle. He did not know the facts very well and while he was telling me what was wrong with my case, I wondered if he was even talking about our case.
I respectfully listened to him, but I wanted to quote Paul Newman from the movie “The Verdict,” one of the best legal movies ever.
At one point in the trial, the judge was interfering in attorney Newman’s presentation of the case and he scolded the judge stating: “Your honor, with all due respect, if you are going to try my case for me, I wish you wouldn’t lose it.”
The retired judge was trying to convince my client that his case was not as good as we thought it was, and my client became agitated as he stood up while the judge was talking as if to leave. The judge took the hint and stopped. We did leave shortly thereafter. The case did not settle.
At one time in my career, mediation was more successful than it is today. Many lawyers call themselves mediators, and some are frankly not very good at it. I prefer mediators who have extensive trial experience representing plaintiffs and defendants, but there are very few of those. I don’t mind using some defense-oriented mediators because they know how to persuade the check writers. They also understand the weaknesses in defense cases and can communicate the weaknesses to the opponent.
There are also cases in which the parties can settle without mediation. Sometimes, good old-fashioned negotiation can result in a settlement. Two good lawyers who know their cases should be able to settle cases without mediator involvement. The parties must split the cost of mediation and it can be expensive, so if the lawyers can settle the case without paying a mediator, everyone wins.
I have also had cases where a mediation is very helpful, especially if my client has a listening problem. On rare occasions the client does not accept what I am telling him or her about the case and the client needs to hear it from the mediator. Therefore, I always tell my client to listen to the mediator. A good mediator will tell you the strengths and weaknesses in my case does the same thing to the other side.
The biggest challenge in most mediations is convincing the client that the evaluation of the case is based on predicting what a jury would do with the case. Many clients want to talk about the losses or damages they have suffered, and while the facts of the damages are part of the evaluation, it is still a matter of predicting what a jury will do. Some mediators will tell the clients that a lawsuit is much like buying a car and the parties are trying to determine what the value of the car is. I recognize the emotional aspects of cases as well as anyone, but emotions need to be checked outside the doors of the mediation.
Alternative dispute resolution has been promoted because it theoretically reduces the cost of litigation. Mediation is one form of alternative dispute resolution. My next column will be about arbitrations and their assault on the Seventh Amendment, which guarantees the right to trial by jury. We all should be concerned about that.
Bob Buckley is an attorney in Independence, www.wagblaw.com. Email him at firstname.lastname@example.org