There is something that I say to the parties at every mediation I run: “The only reason to settle is if it beats the alternative”. In most cases, the alternative is to continue on with litigation. And as we all know, a miniscule number of cases actually make it all the way to trial; last I heard, it was under 2%. That’s a good thing, since if more cases went to trial, our already overburdened justice system would have an even greater backlog.
Resolving a claim at mediation is good, but winning at mediation is even better. After all, anyone can settle. As an advocate, you should work to get the best result for your client, whether it is at trial or at mediation.
When we prepare for trial, we leave no stone unturned, and we spend every minute necessary to develop a strategy, gather the evidence, and craft persuasive arguments. Conversely, many lawyers do little more than go through the motions at mediation, copying their pleading into a mediation brief and then showing up at mediation without a firm grasp of the case and evidence, planning to “see how it goes”. Although they may resolve the case, they do not get the best result for their client. As a mediator, I often finish my review of the briefs without any clear idea as to what the real issues are and what each party truly intends to argue.
This is a missed opportunity and a disservice to our clients. Since very few cases get to trial and mediations result in settlement, it is often the only real opportunity to argue your case in front of a neutral third party and get the best result. As counsel, your job is to show your mediator how strong your case is and enlist them to advocate on your behalf. The easier that you make it for me to understand your case, the easier it will be for me to put your case forward in the other room. As I often say, at mediation, you want to “help your mediator help you”.