Mediation Roadblocks

In a recent study of New York litigators’ views of mediation that I directed, some lawyers expressed their reluctance to use mediation.  Among the reasons given were:

• Many plaintiffs’ counsel believe that defense lawyers are not keen to mediate or negotiate until trial looms because they want to bill as many hours as possible, which one lawyer termed “churn and earn.”
  
  But a highly-respected employment defense lawyer said that while some lawyers are more concerned about their finances than client’s interests, he has found that resolving cases through ADR brings more clients through the door.   Another said that “a happy client comes back and refers other clients to you.  If you overbill, they won’t do that.”

• Some defense lawyers felt that the plaintiffs’ bar promises clients that “litigation will result in a jackpot and success is a sure thing.” As a result, plaintiffs make unrealistic demands that render mediation a waste of time.   To avoid this, some attorneys request a pre-mediation demand and often refuse to mediate if they think the demand is “not in the ballpark.”
  
  However, a number of lawyers said that even when a plaintiff’s initial demand was unrealistic, many plaintiffs became more reasonable when they heard the other side’s evidence and the neutral’s assessment of a case.  Some never request a pre-mediation demand because they assume it will be high but know from experience that the initial demand will probably not affect the success of the mediation.  They realize that both parties often start out with extreme positions and eventually find common ground.  As discussed above, litigators said “Knowing adversary’s demand in advance” was the least important factor in the outcome of a mediation.

• Many lawyers expressed the concern that suggesting mediation to opposing counsel would be seen as a sign that they think their case is weak.
  
  Others were not concerned about this.  They say weaknesses will be exposed at trial anyway, and if a case has weaknesses, mediation is a face-saving way of settling and avoiding trial. One lawyer said “I am more anxious to mediate a weak case and bring it to a potential resolution favorable to my client as opposed to losing the case.”  If there are not significant weaknesses, mediation is an opportunity to educate the adversary.
  
  On a practical level, most cases that are not dismissed eventually settle, usually after much time and money have been spent, so it’s advantageous for people to consider settling sooner rather than later.  As a British barrister not involved in the survey said, “Suggesting mediation is not a sign of weakness but of common sense.”
  
  Two 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.”

• Some lawyers were concerned about disclosing their evidence, theories and strategies in a mediation that does not result in settlement and similarly, about the adversary using mediation for free discovery.
  
  “Too much disclosure” does not bother other lawyers, who said that mediation provides a more realistic view of the case - an opportunity to explore the strengths and weaknesses of their own case and their adversary’s – and then to adjust their client’s expectations.  One very experienced attorney said, “I do not have any concerns about the adversary using mediation as free discovery.  I would not disclose anything in mediation that I do not want to or that would not be turned over in litigation.”  Another pointed out that this concern can be allayed by providing sensitive information in caucus: “Some lawyers are concerned about disclosing things in mediation that will compromise them later.  I tell them that information the mediator hears in caucus will not be disclosed to the adversary without their consent.”

• Some lawyers said their clients reject mediation because they want to fight and insist on having their day in court.
  
  But other lawyers pointed out that such clients are probably not aware that very few cases 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.(1)  So, if a case is not dismissed, it will probably settle before trial after substantial sums have been spent.   In these circumstances, mediation serves a valuable function by providing clients with “a day in court without a day in court.”
  
  In truth, many objections to mediation are really objections to settlement.  In some cases, clients may have good reasons for not wanting to settle.  But most of the time, according to one veteran litigator, “If a client refuses to consider mediation, I wonder about the client.”