Mediation Works

—By John Merrick —

Mediation works when everyone participates in good faith.

Good faith requires extensive preparation, recognition of risks and acknowledgment of weaknesses (at least internally).

At worst, mediation forces everyone to focus on the potential for settlement at the same time.

This triggers conversations (reports) that may otherwise not occur.  The defense attorney and insurance adjuster carefully review pre-mediation reports and update their settlement evaluations and potential verdict range. The plaintiff’s attorney reviews the strengths and weakness of the case, costs, benefits and risks of trial (versus the certainty of settlement) with the client. The mediator uses his / her experience and touch to build rapport and find consensus.

Most importantly, the parties show up in good faith. They set aside their time to focus and listen. Everyone attends with a fresh set of eyes on the case.

In most cases, the mediator can lead the parties to the figure where their settlement ranges overlap or, in some cases, adjust the ranges until they overlap.

Mediation that does not result in a settlement is not a waste of time or “unsuccessful”. It often leads to a settlement, particularly with a mediator who keeps the settlement conversation going after the mediation. Alternatively, if the parties are far apart, then at least everyone knows the case will be tried (or should be seriously re-evaluated).

Sure, there are exceptions. But far more often than not, mediation is a productive and efficient exercise.

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