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IBA: Making Choices in Mediation

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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.•

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  1. A traditional parade of attorneys? Really Evansville? Y'all need to get out more. When is the traditional parade of notaries? Nurses? Sanitation workers? Pole dancers? I gotta wonder, do throngs of admiring citizens gather to laud these marching servants of the constitution? "Show us your billing records!!!" Hoping some video gets posted. Ours is not a narcissistic profession by any chance, is it? Nah .....

  2. My previous comment not an aside at court. I agree with smith. Good call. Just thought posting here a bit on the if it bleeds it leads side. Most attorneys need to think of last lines of story above.

  3. Hello everyone I'm Gina and I'm here for the exact same thing you are. I have the wonderful joy of waking up every morning to my heart being pulled out and sheer terror of what DCS is going to Throw at me and my family today.Let me start from the !bebeginning.My daughter lost all rights to her 3beautiful children due to Severe mental issues she no longer lives in our state and has cut all ties.DCS led her to belive that once she done signed over her right the babies would be with their family. We have faught screamed begged and anything else we could possibly due I hired a lawyer five grand down the drain.You know all I want is my babies home.I've done everything they have even asked me to do.Now their saying I can't see my grandchildren cause I'M on a prescription for paipain.I have a very rare blood disease it causes cellulitis a form of blood poisoning to stay dormant in my tissues and nervous system it also causes a ,blood clotting disorder.even with the two blood thinners I'm on I still Continue to develop them them also.DCS knows about my illness and still they refuse to let me see my grandchildren. I Love and miss them so much Please can anyone help Us my grandchildren and I they should be worrying about what toy there going to play with but instead there worrying about if there ever coming home again.THANK YOU DCS FOR ALL YOU'VE DONE. ( And if anyone at all has any ideals or knows who can help. Please contact (765)960~5096.only serious callers

  4. He must be a Rethuglican, for if from the other side of the aisle such acts would be merely personal and thus not something that attaches to his professional life. AND ... gotta love this ... oh, and on top of talking dirty on the phone, he also, as an aside, guess we should mention, might be important, not sure, but .... "In addition to these allegations, Keaton was accused of failing to file an appeal after he collected advance payment from a client seeking to challenge a ruling that the client repay benefits because of unreported income." rimshot

  5. I am not a fan of some of the 8.4 discipline we have seen for private conduct-- but this was so egregious and abusive and had so many points of bad conduct relates to the law and the lawyer's status as a lawyer that it is clearly a proper and just disbarment. A truly despicable account of bad acts showing unfit character to practice law. I applaud the outcome.

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