Sign of Weakness

Some lawyers are concerned that suggesting mediation to clients or opposing counsel will be seen as a sign of weakness.   On the contrary, it is a sign of common sense.

Suggesting mediation is simply opening a door to settlement, which is important because most cases never go to trial.  In New York State courts, 3% of the cases are tried; in New York City courts, 3.75%; in the Southern and Eastern District Federal courts, fewer than 2% of the cases go to trial*. Since it is far more likely that cases will be settled rather than tried, it makes sense to find out, before clients invest significant amounts of time and money in litigation, whether early settlement is possible.   Mediation is one way of doing this  It has the added benefit of giving clients “a day-in-court” they might not get otherwise.

Suggesting mediation is no more a sign of weakness than offering to negotiate, something we do every day.  At home, we negotiate which movie to see and where to go for dinner.   At work, we negotiate salary and assignments.  Business people negotiate deals.  Real estate developers negotiate sales and leases.  Lawyers negotiate settlement agreements.   When they reach an impasse, negotiating with the assistance of an impartial mediator is a useful option.

As a practical matter, if your case does have flaws, they will be exposed at trial.  Mediation is a face-saving way of settling a weak case and avoiding trial.  If there are not significant weaknesses, mediation provides a face-to-face opportunity to make an opponent understand the shortcomings of his case and the strength of yours.  Having an adversary view a suggestion of mediation as a sign of weakness may make it more likely that he or she will come to the table, where you and perhaps the mediator can educate him or her.

If lawyers remain concerned about being seen as weak, two New York litigators offered their strategies for avoiding the appearance of weakness.  One said: “To opposing counsel, I always raise the possibility, but I do it as if the client hasn’t given me authority to propose it, even if they have.  Example: ‘Do you suggest I recommend it to the client?’  Sometimes I tell the adversary ‘I think I can sell it to my client.’  These tactics give the adversary a stake in the decision and help promote the decision to use mediation.” The other said:  “I don’t see suggesting mediation as a sign of weakness, although if I’m in court, I will try to get the judge or magistrate to suggest it to both sides.”

Lawyers who want to be perceived as “warriors” may fear that suggesting mediation will diminish their “pit bull” image. But “wimp” or “warrior” isn’t the only choice.  If the client’s goal is resolution, and the case in all likelihood will settle eventually, lawyers will better serve their clients’ needs and interests by being great problem-solvers and negotiators.

Copyright, Richard S. Weil, February 2011

* New York State Unified Court System, Report of Civil Case Activity, Dump Reports for Total State and New York City for Full Years 2008 and 2009.  Administrative Office of U.S. Courts, Federal Judicial Caseload Statistics, Table C-5 for periods ending 3/31/08, 9/30/08, 3/31/09, 9/30/09 and C-4A for period ending 9/30/09, available at