Mediation is a tool plaintiff's lawyers should consider using to resolve a case fairly and quickly. My experience is that too often since the mediation process is so different from the familiar course of litigation, lawyers are often hesitant to go down this path. Instead, we hold course, as we have grown accustomed to the frustrations of the litigation process.
Although mediation may not be the answer to all cases, it can be attractive in certain instances. One such instance is when there are multiple parties and claims. In such cases, you may not be able to get resolution to your client's "cut and dry" case because of problems with claims from other parties. Here, mediation may be a much faster process than civil litigation. It allows the opportunity for parties to work together and reach a settlement without the frustration of litigation.
Another scenario where mediation may be useful is when a party's injuries are clear, but liability is disputed. An experienced mediator can address the issues in dispute and help parties find a common ground. Because both parties have taken a stance on who has the better side of the liability argument, a mediator is helpful in underscoring to the plaintiff the chances of defense verdict and to the defendant that because of the substantial damages, the there is real value in the case, even if liability is questionable.
Critics of mediation claim that the process may not be advantageous to plaintiffs due to an imbalance of power or because emotions that may be elicited in the courtroom are less likely to sway a weathered mediator. To the contrary, the right mediator can help point out strengths and weaknesses in the case and bring both parties down to earth. Although mediation is less likely to succeed if parties are extremely hostile or not motivated to settle, this is usually a minority of cases.
The next time you have a case that just won't settle, why not try mediation? You may be pleasantly surprised with the result!
