Working With a True
Parties “stuck” in conflict.
Parties stuck in interpersonal conflict or extensive negotiations may benefit from a neutral mediator’s fresh perspective. A skilled mediator can help parties navigate past roadblocks and illuminate new strategies to move forward.
Litigants seeking settlements through litigation or arbitration.
The litigation process is lengthy, expensive, stressful, and uncertain. Mediation is an ideal process to shape mutually beneficial settlements outside of court in a timely and cost-effective manner.
A neutral mediator creates a space where parties can take responsibility for their actions uniquely and powerfully, often more satisfying than a legal judgment. Moral, principled mediation and negotiation processes can leave parties with a sense of peace and wholeness. Alternatively, even if a party “wins” in court, feelings of pain, loss, and “unfinished business” may linger. We believe that internal resolution to conflict emerges from substantive merit, not procedural rules. With that in mind, mediation provides the means to lasting external resolution and inner peace.
“Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser — in fees, expenses, and waste of time. As a peacemaker, the lawyer has a superior opportunity of being a good man. There will still be business enough.”
— Abraham Lincoln, Notes for a Law Lecture, 1850
No matter which side you’re on, in most situations, the best practice is to settle early and informally. Pre-trial costs for investigation, depositions, and expert witnesses run into tens of thousands of dollars—even more in complex and bitterly fought cases. And hourly fees to pay your lawyers mount rapidly as a case advances to trial.
For many individual plaintiffs, months, if not years, of angst and mental preoccupation combined with increased litigation costs and stepped contingency fees eat into the actual value of a verdict.
But before meditating, get informed. Invest resources early and efficiently, evaluating damages, available evidence, and risk.
Some cases must be tried, of course. But in most lawsuits, pressure points surface, opportune moments when both sides are ready to come to the table and negotiate in good faith.
Look for signs that your opponent is acting reasonably–an unexpected reduction in hostility, better manners, a friendly concession. Status conferences and hearings on dispositive motions and summary judgment motions, in particular, open windows to the settlement process.
And don’t be afraid to be the first to offer mediation. It’s not a sign of weakness. You will not lose face. You won’t appear desperate. The opposite tends to be true in my experience. The side suggesting mediation looks informed, confident, and in control. In short, professional.
To try or not to try? That is the question. Lincoln teaches us that, win or lose, litigation is expensive in more ways than one. And a mistake or miscalculation in deciding to try rather than settle a case can be ruinous financially and cost you a client.
In his excellent article, Early Intervention Mediation, Douglas McQuiston states, “Clients, and increasingly courts, are looking for results that are better, faster, and cheaper…Today’s goal is to get to the point without breaking the bank.” *
Close to 90% of litigated cases settle. But empirical data on the remaining 10% that go to trial raises troubling issues about how lawyers and clients decide whether to go to trial, the quality of the decision, and underlying motives.** In a DecisionSet study by Kiser, Asher, and McShane of 2,054 tried cases, the researchers found that plaintiffs got it wrong going to trial in 61% of cases, while defendants were in 24%. And what did the horrible decision cost the parties? Adjusted for inflation: $57,000 for plaintiffs and a whopping $1,344,500 for defendants. Miscalculations and mistakes in deciding to try or not to try are expensive, much more so for defendants.
What does it cost your client to try a case? In 2012, 312 ABOTA members were surveyed “to develop a national baseline of litigation time, and costs” for the six case types studied: automobile tort, premises liability, real property, employment, contract, and malpractice.† Median times were also developed in litigation tasks, case initiation, discovery, settlement, pretrial, trial, and post-disposition.
The results of the survey, not adjusted for ten years of inflation, revealed the following median costs of litigation by case type for defense firms of all sizes nationally, weighted somewhat for Florida, Texas, and California: ‡
Premises Liability: $61,792
Real Property: $75,975
As clients become increasingly sophisticated legal consumers, this data may help help you develop a reasonable litigation strategy and budget. It also provides a view towards participating in informed, good faith settlement negotiations or mediation, following discovery sufficient to value your position (based on the strength of evidence, damages, local jury pool, and other salient factors).
*Douglas I. McQuiston, Early Intervention Mediation, Colorado Lawyer, November 2018
** Jonathan D. Glater, Study Finds Settling is Better Than Going to Trial
† Paula Hannaford-Agor, Measuring the Cost of Civil Litigation, Findings from a Survey of Trial Lawyers, Voir Dire, Spring 2013.