ILNews

IBA: Making Choices in Mediation

Back to TopCommentsE-mailPrintBookmark and Share

By John C. Trimble, Lewis Wagner, LLP

One of the true ironies associated with the popularity of mediation is that many parties are refusing to negotiate outside of mediation. This is unfortunate and wasteful. Smart lawyers realize that they can still settle a case without mediation, and they are reserving mediation for the tougher situations.

The most basic rule of choosing a case for mediation is that about any case can be mediated. About the only thing that will make a case unsuitable for mediation is if it is too small to justify the attorneys fees and mediator fees associated with the process. Even so, some small cases end up in mediation because the costs of going forward to trial are even greater than the cost of mediation.

trimble Trimble

One thing to remember in choosing cases for mediation is that there are no hard and fast guidelines as to what makes a case attractive for mediation. For example, some may take the position that a case cannot be mediated when there is a dispositive issue that is awaiting ruling by a trial judge. Even in such a case, the parties may be in a position to assess the possibility of the ruling going for or against them, and they may be willing to compromise based upon their assessment of the risk. Another example may be the case in which a party is afraid to settle because of the precedent that could be set by paying a claimant even one dollar. Such a case may be susceptible to settlement if a confidentiality agreement can be obtained. A third example may be the case in which the person prosecuting the claim is motivated by principle. The case may be settleable if the person’s needs can be met even if principle cannot necessarily be fully addressed.

The bottom line is that every situation that is going to cost a client money to try should be submitted to mediation if it cannot be settled beforehand.

Once the decision to seek mediation has been made attention turns to selecting a mediator. Deciding who to choose is an imprecise science. However, it is a step in the mediation process that must be taken very carefully. You must begin by weighing the temperament, knowledge, age, experience, and personality of your client, the opposing attorney, and the other party. It also helps to have some idea as to which of the parties or attorneys in the case will need the most persuasion in order for the case to settle. Depending upon the mix of these factors, there are some cases in which you need a mediator who has knowledge in the area of law that is the subject of the case. In other caes, you may need an older mediator; you may need an aggressive mediator; or, you may need a patient mediator.

If you choose a mediator from among a group of mediators who are known to be highly experienced, then you are probably not likely to need someone who has a great deal of specific experience in particular field of law. On the other hand, if you are handling a case in which your opposing counsel and opposing party do not know a great deal about a particular area of law, it sometimes helps to have a mediator who has some credibility in that area.

In choosing a mediator, it is advisable to call other attorneys who have used that mediator to find out his or her strengths and weaknesses. If other lawyers have had a good experience with the mediator, then you probably will too. The question is sometimes asked whether is its detrimental to a defendant to have a plaintiff’s attorney serve as a mediator or detrimental to a plaintiff to have a defense attorney serve as a mediator. The answer to that question boils down to who needs to be persuaded. For example, a plaintiff’s attorney serving as mediator may be more persuasive in getting a plaintiff attorney and plaintiff to compromise than a defense attorney would (and vice versa).

What you definitely don’t wish to do is to simply strike a name from a court-approved list without knowing something about the person you are choosing.•

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. "...not those committed in the heat of an argument." If I ever see a man physically abusing a woman or a child and I'm close enough to intercede I will not ask him why he is abusing her/him. I will give him a split second to cease his attack and put his hands in the air while I call the police. If he continues, I will still call the police but to report, "Man down with a gunshot wound,"instead.

  2. And so the therapeutic state is weaonized. How soon until those with ideologies opposing the elite are disarmed in the name of mental health? If it can start anywhere it can start in the hoosiers' slavishly politically correct capital city.

  3. So this firebrand GOP Gov was set free by a "unanimous Supreme Court" , a court which is divided, even bitterly, on every culture war issue. WHAT A RESOUNDING SLAP in the Virginia Court's face! How bad must it have been. And all the journalists, lap dogs of the status quo they are, can do is howl that others cannot be railroaded like McDonald now??? Cannot reflect upon the ruining of Winston and Julia's life and love? (Oh I forget, the fiction at this Ministry of Truth is that courts can never err, and when they do, and do greatly, as here, why then it must be ignored, since it does not compute.)

  4. My daughter is a addict and my grandson was taken by DCS and while in hospital for overdose my daughter was told to sign papers from DCS giving up her parental rights of my grandson to the biological father's mom and step-dad. These people are not the best to care for him and I was never called or even given the chance to take him, but my daughter had given me guardianship but we never went to court to finalize the papers. Please I have lost my daughter and I dont want to lose my grandson as well. I hope and look forward to speaking with you God Bless and Thank You for all of your help

  5. To Bob- Goooooood, I'm glad you feel that way! He's alive and happy and thriving and out and I'm his woman and we live in West Palm Beach Florida, where his parents have a sprawling estate on an exclusive golf course......scum bag

ADVERTISEMENT