Navigating the transition from adversarial litigation to collaborative dispute resolution can be difficult. But making that transition allows for more productive mediation discussions.
Litigation is unavoidably adversarial. The caption of every court filing lays out the opponents: One Side v. The Other. Lawsuits are characterized by language of conflict: complaint, defense, allege, oppose, dispute, demand, object, impeach, interrogate, argue. Innumerable articles expound on the application of military strategy and tactics in litigation.
Litigation involves contentious, often heated, exchanges and a win/loss scorecard. Positions are strongly held, driven by beliefs regarding an entitlement to compensation, vindication, and/or justice. Court filings lambast the actions and motivations of the opposing side. There may be perceptions of dishonesty or unfairness in the litigation itself. Strong emotions – or at least strong feelings of right and wrong – are nearly always involved.
In some cases, clients will reject settlement as a viable option and view mediation as a roadblock. The heat of litigation, entrenched positions, and the emotionally charged nature of many disputes can all make it difficult for clients to engage in collaborative discussions at mediation.
It can also be difficult for attorneys to step outside the heat of litigation in order to make the most of mediation. Too often, counsel become engaged in a battle of their own. When a lawsuit is drawn out, expensive, or highly contentious, attorneys may resist the idea of negotiating with opposing counsel.
Navigating the transition from adversarial litigation to collaborative mediation is both difficult and essential. Mediation should not be another battleground. Of course, each side at mediation will make clear their view of the facts and the strength of their legal arguments. But this should be viewed as setting the table for collaborative discussions. The goal of mediation should not be to convince the mediator (or the other side) that you will “win” or that you will never move from your initial position.
Mediation is most successful, even in highly contentions lawsuits, when attorneys and their clients are willing to turn down the heat and take advantage of the opportunity to collaborate. Once the parties’ positions are clear, mediation presents an opportunity for litigants to have confidential discussions that are more difficult, if not impossible, in the heat of litigation. The magic of mediation happens when participants understand the benefits of a negotiated resolution and work to craft a mutually agreeable resolution.
Collaboration doesn’t preclude zealous representation. Attorneys can zealously represent their clients and still find a way to work with opposing counsel on a negotiated resolution. In many successful mediations, counsel explicitly agree in advance to turn down the heat and work together in a collaborative approach to resolution. Settlement terms can be aggressively negotiated, even as both sides work toward a mutually-agreeable outcome.
Collaboration requires a willingness to look for a solution that all sides can accept and an understanding that certain concessions will be necessary. Attorneys should encourage their clients to view mediation as an opportunity to turn down the heat and explore whether a negotiated resolution is possible. There’s no single approach to this. But a conversation about the role of mediation, the risks of continued litigation, and the benefits of a negotiated settlement is a good place to start.