Ups and Downs (III)

[TimR]

As an L I do a lot of mediation in civil cases. My old boss completely destroyed our D mediation process in our area so it no longer exists. For what it is worth, here are my thoughts of mediation...

First of all, not all mediators are created equal. Some are very good and some are a waste. Talk to attorneys and get their read on your perspective mediator.

Second, in my experience there are three types of mediators 1. just want to collect their cash and could careless what happens in the case, 2. those that prep ahead of time and determine a position they feel will be fair and then try to guide the parties to the conclusion they want. Keep in mind this position can be contrary to yours and can be bias on their part by past history and personal/professional interests. Finally, 3. my favorite are those that do not care about how the cases or issues settle, they just want them to settle and will twist arms to make it settle despite any personal biases they may have. With this type of mediator you need to have a strong negotiating style and be honestly willing to walk out. I had a case in front of a federal mediator (he was also a judge) who called me into his office after the case settled and read me the riot act for being greedy and getting my client "much more than he was entitled." He also got mad when I told him I found that to be a compliment.

Third, mediation is negotiation. You must be a strong personality and the process takes advantage of weaker personalities. You cannot go in and 'think' you are strong, you must be strong and willing to walk out. I always tell clients to follow my lead and if I decide to walk out then do not question it just follow, I will explain outside.

I do not know you like your attorney does, so I can only speculate why they may warn against. Maybe they do not feel the mediator is a good one. Maybe they do not perceive you as strong enough to take a hard stance. Maybe they do not see you as flexible enough (in every good settlement both parties walk out equally p1ssed). Maybe they feel the judge you will have will sympathize much more for you. Speak with your L and ask why they think litigation is the way to go. I will say this from years of doing about double the jury trials of most civil litigation attorneys in my area, any attorney who tells you with certainty what the result will be if you litigate is an attorney who is foolish or does not go to court often. Any time you put something in someone elses hands you have a 50/50 chance of getting what you want.

One final note on mediation, you can always walk out and it is still not fruitless because you got somewhat a different perspective on your case because there is yet another set of eyes looking at your case.

I wish you the best of luck JujuB.