If it’s not already, mediation should be one of the tools you incorporate into your litigation or pre-litigation strategy. In early conversations with clients (or potential clients), do you talk about the value of mediation as a dispute resolution tool? Do you discuss how mediation fits into your litigation strategy? Do you talk through the pros and cons of scheduling mediation before litigation commences, shortly after a complaint is filed, after initial discovery, after dispositive motions? No less than discovery or motion practice, the strategic use of mediation can be (indeed is intended to be) the means to a satisfactory resolution of your client’s dispute.
Regardless of when mediation takes place, early discussions about its value and strategic use lay the groundwork for your clients to make the most of the mediation process. The adversarial nature of litigation, entrenched positions, the emotionally-charged nature of a dispute — whatever the reason, clients are often resistant to mediation. We’ve all heard versions of this: “There’s no way we’re settling / paying anything / taking one penny less / this is a waste of time.”
Resistance is more likely if the first-time clients hear about mediation is after the court orders it. Early discussions about the role and value of mediation can help break down these barriers. Clients who understand the role of mediation (and the high percentage of civil lawsuits that settle before trial) are more likely to take advantage of the mediation process.
Finally, don’t overlook the value of giving clients time to come to terms with the idea of a negotiated settlement for their dispute. Regular client conversations about best- and worst-case litigation scenarios are invaluable in this regard. Clients who understand the cost and risks of litigation are better positioned to consider the potential advantages of settlement. Mediation is most often successful when clients come prepared to collaborate in order to craft a sensible and flexible resolution of their dispute.