FOCUS ON ADR
Reprinted from the Nov. 14, 2001 issue of Verdicts & Settlements
Out of Balance
OPINION: Sending cases to mediation has been touted as a way to avoid trial, but many pitfalls exist.
B Y D AV I D M . G R E Y
ediation and other forms of alterna- the process. The technical issue flagged in mediation what is said but never stop analyzing in favor of accepting
M
tive dispute resolution are praised may result in summary judgment and never reach a jury, a position suggested at mediation.
as ways to avoid trial. Much is writ- but carefully consider how a technical issue may play out Counsel needs to factor in the emotional toll of media-
ten in favor of mediation, yet little differently with judge, jury or court of appeals. tion on the client. For unsophisticated clients, mediation
criticism of its downside, which can The parties are at the mercy of the mediator’s integri- can be as stressful and emotional as trial, and they truly
be significant, appears. Advocates ty. There are mediators whose ethics are beyond re- may not understand the difference. Counsel should not
of mediation list cost, uncertainty proach, but because the process is nonbinding, the same rely on the neutral to set the tone of the mediation.
and the emotional trauma of trial as the downside of liti- high ethical standards imposed on a judge or arbitrator Advocates should discuss with the mediator what ap-
gation. Proponents of mediation also argue that it allows may not apply. proaches will be most helpful in proceeding. Counsel
the parties to maintain control over should consider doing this without op-
how their dispute is resolved. posing counsel, if appropriate to assist
Some dangers to mediation should in a candid discussion about the prob-
be explored and recognized. These lem with the mediator. Before agree-
dangers flow from the very nature of ing to mediation in a highly emotional
the mediation process, which is con- case, counsel must think through the
trary to the winner-take-all concept of relative merits of subjecting the client
trial. The all-out battle for victory that to mediation, which may weaken his
is trial forces each side to focus on or her resolve to achieve a satisfactory
the core strengths and weaknesses of and appropriate resolution.
the case. Aggressive opposing counsel may
In trial, the jury is forced to focus on take positions in mediation to intimi-
the actual evidence, not what the date, which would never occur in
lawyers say the evidence will be. The court, for fear of alienating the jury.
jury gets a firsthand view of the evi- Particularly aggressive counsel may
dence, with the specific purpose of try to control the mediator, often over-
choosing one side to win. The jury is whelming a less-skillful mediator and
not charged with finding a compro- causing the unsophisticated client to
mise for some purpose extraneous to fear and distrust the entire litigation
the facts of the litigation. process.
This difference between mediation Cost and timing of the mediation
and trial must be recognized and also are critical for success. Mediation
dealt with to maximize the client’s ad- at the wrong time in a case may be
vantage. counterproductive. Counsel should
First, the mediator is not truly neu- know enough about the dispute to
tral. The mediator has a stake in set- argue properly for an appropriate set-
tling the case. The success or skill of a tlement. On the other hand, an early
mediator often is measured by the abil- mediation may be more conducive to
ity to resolve a dispute, not by whether successful resolution, particularly be-
the mediator helped arrive at the right fore the parties have invested time, at-
resolution, assuming there is one. The torney fees and energy in preparing
jury decides its one case and goes their cases.
home. The jury does not have to worry In the smaller case, the cost of medi-
about marketing itself for future busi- ating may outweigh the cost of trial,
ness. The jury is charged with making particularly if trial can be accomplished
a decision based on the evidence and in one day. Consider the economic
has no other agenda. sense of mediation, including prepara-
By contrast, consideration must be tion time for both the client and coun-
given to the mediator’s agenda when sel. The most effective mediations usu-
evaluating the commentary during the ally involve significant preparation.
proceedings. The mediator would not The cost of litigation affects the per-
be there if he or she were not trying to spective of each party. Does the other
help resolve the case. side have the staying power to liti-
Compared to a jury, the mediator gate? Do they think you do not? Is the
may be too sophisticated. The jury’s lay view of the law, Counsel should not assume that neutral and ethical other side using mediation as a fact-finding mission or,
frequently criticized, often can come closer to justice than are the same thing. Advocates should be certain that the worse, a means of impressing on its opponent just how
a roomful of law books. As one grows more sophisticated, mediator has the appropriate ethical standards. hard it will fight?
the ability to see gray areas and rationalize certain results Trial is not always bad. The cost, uncertainty and Mediation, as with all negotiation, is part game. Media-
increases. By contrast, the supposedly unsophisticated emotional drain of trial are cited as reasons to settle at tors are just players in the game, and their comments
juror probably will have a better sense of basic right and mediation; certainty is the trade-off for a settlement. It is must be evaluated carefully.
wrong and may not appreciate legal technicality. incumbent on counsel to assess candidly the risk and Mediation is not necessarily bad or something to avoid.
Most mediators are lawyers trying to encourage settle- uncertainty of trial against the settlement. Consider the Indeed, counsel are not doing their job if mediation is not
ment, not trying to find justice or distinguish between value of the settled dispute over trial. Trial is a legitimate considered and, where appropriate, recommended to the
right and wrong. Recognize the mediator’s higher degree end to a dispute. client as an option. Just as one method of ADR is not right
of sophistication and factor it into your evaluation; it is One of counsel’s jobs in mediation is to evaluate and for all cases, counsel needs to recognize that some cases
not necessarily bad, just one more thing to consider in critique the relative positions and help the client choose may only be resolved appropriately through trial.
the most prudent course of action. If a reasoned analysis Finally, treat the mediation with the same fear and re-
David M. Grey is a partner at Los Angeles’ Murawski & dictates trial, do not be afraid to reject a mediated settle- spect as trial. Prepare thoroughly and continually evaluate.
Grey, where he litigates real estate and employment ment. Counsel and client will know the nuances of their Many of the so-called evils of mediation can be avoided by
disputes. case better than the mediator. Advocates should listen to treating it like trial.
10 November 14, 2001 VERDICTS & SETTLEMENTS Illustration by Margaret Scott