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

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. "Am I bugging you? I don't mean to bug ya." If what I wrote below is too much social philosophy for Indiana attorneys, just take ten this vacay to watch The Lego Movie with kiddies and sing along where appropriate: https://www.youtube.com/watch?v=etzMjoH0rJw

  2. I've got some free speech to share here about who is at work via the cat's paw of the ACLU stamping out Christian observances.... 2 Thessalonians chap 2: "And we also thank God continually because, when you received the word of God, which you heard from us, you accepted it not as a human word, but as it actually is, the word of God, which is indeed at work in you who believe. For you, brothers and sisters, became imitators of God’s churches in Judea, which are in Christ Jesus: You suffered from your own people the same things those churches suffered from the Jews who killed the Lord Jesus and the prophets and also drove us out. They displease God and are hostile to everyone in their effort to keep us from speaking to the Gentiles so that they may be saved. In this way they always heap up their sins to the limit. The wrath of God has come upon them at last."

  3. Did someone not tell people who have access to the Chevy Volts that it has a gas engine and will run just like a normal car? The batteries give the Volt approximately a 40 mile range, but after that the gas engine will propel the vehicle either directly through the transmission like any other car, or gas engine recharges the batteries depending on the conditions.

  4. Catholic, Lutheran, even the Baptists nuzzling the wolf! http://www.judicialwatch.org/press-room/press-releases/judicial-watch-documents-reveal-obama-hhs-paid-baptist-children-family-services-182129786-four-months-housing-illegal-alien-children/ YET where is the Progressivist outcry? Silent. I wonder why?

  5. Thank you, Honorable Ladies, and thank you, TIL, for this interesting interview. The most interesting question was the last one, which drew the least response. Could it be that NFP stamps are a threat to the very foundation of our common law American legal tradition, a throwback to the continental system that facilitated differing standards of justice? A throwback to Star Chamber’s protection of the landed gentry? If TIL ever again interviews this same panel, I would recommend inviting one known for voicing socio-legal dissent for the masses, maybe Welch, maybe Ogden, maybe our own John Smith? As demographics shift and our social cohesion precipitously drops, a consistent judicial core will become more and more important so that Justice and Equal Protection and Due Process are yet guiding stars. If those stars fall from our collective social horizon (and can they be seen even now through the haze of NFP opinions?) then what glue other than more NFP decisions and TRO’s and executive orders -- all backed by more and more lethally armed praetorians – will prop up our government institutions? And if and when we do arrive at such an end … will any then dare call that tyranny? Or will the cost of such dissent be too high to justify?

ADVERTISEMENT