I have often been asked whether an attorney shows weakness if the attorney suggests mediation. In 1998, when I began mediating, this was a frequent concern. Fortunately, at that time, I was the Chief Appellate Mediator at the Utah Court of Appeals, and attorneys were permitted to call my office and confidentially request mediation. The court randomly selected briefed cases for mediation at that time, and neither party was advised if the mediation was requested. Counsel did not want the other side to know they suggested mediation because they were concerned it would show weakness.
Over the past 13 years, things have changed. Judges often order parties to mediate within a certain time frame. At times, the order is too early in the case. At other times, the litigation has dragged for many years, and the parties are not only entrenched but concerned that they have too much invested in the case to settle. However, attorneys now know that the court may order mediation at any time, and they know that most cases are mediated at some point. Thus, they often agree to mediate before the judge orders mediation. In most cases, attorneys wait until they have taken key depositions and have the critical documents needed. At other times, attorneys decide to mediate when they have only a rudimentary understanding of the case. In such instances, counsel are mediating early to save the client’s resources for settlement rather than using the client’s resources on attorney’s fees.
Whether attorneys and clients opt to mediate early depends many factors including the facts of the case, the complexity of the dispute, the level of emotion, and the client’s desires. In one recent instance, an attorney believed his company had significant exposure due to a death, and the case was highly emotionally charged. He wanted to mediate early to based on his sense that it would better serve both his client and the family. The high value case settled early.
Today, neither side seems to be as concerned about showing “weakness.” Rather both attorneys matter-of-factly discuss mediation as a logical appropriate step in serving the client’s best interests and saving attorney’s fees. In the instances where this concern of showing weakness persists, attorneys can call the mediator, explain the dilemma, and engage the mediator to assist in convening the case in an appropriate manner, including having clients with settlement authority present, providing mediation briefs, and exchanging important documents sufficiently in advance of mediation. In some states, mediators are hired early to assist attorneys manage the discovery process in large cases, including narrowing the necessary depositions and managing the document exchange. Clients generally appreciate the cost-savings of mediation because they can be involved in formulating a solution, controlling the case, and can better control the outcome; whereas if the case goes to court, the judge will decide the matter.