When you have a dispute with someone, your first thought may be, “I’ll sue that $#@*&^%!” but this may not be the best option. Litigation is a stressful, time-consuming, slow, and expensive way to resolve a dispute.
This means that settling a dispute is often preferable to resolving the matter through litigation. It’s faster and cheaper, and no matter how good you think your case is, you may lose a lawsuit. If you win, you might not be awarded everything you asked for.
Even if the judgment is everything you wanted, in most cases, you won’t have your attorneys’ fees reimbursed, since the American rule is that, unless there are special statutes or contracts, each party pays the party’s own attorneys’ fees. You could, therefore, discover you’ve spent $100,000 to recover $50,000.
Settlement, on the other hand, allows you and your opponent to fashion a resolution that will work for both of you.
Although it’s commonly said that a good settlement is one where both sides are unhappy, it would be more accurate to say that, while neither party gets everything it wants, both parties are grudgingly satisfied with the arrangement.
This type of resolution can be difficult to work out when emotions are running high, but a mediator may be able to help.
Mediations can even take place using video-conferencing platforms such as Zoom, Microsoft Teams, and GoToMeeting.
What Exactly Is Mediation?
A mediator is an impartial third party, like a referee in a sporting event, who facilitates dispute resolution. Typically, the mediator is an experienced lawyer or a retired judge.
He or she will usually advise each party about its own weak spots in the case, as well as the strengths of the other party’s case and the probable value of the claim in order to help both sides understand why settlement is beneficial.
The mediator may also help resolve the dispute by sharing new insights. Often a mediator can think of a win-win solution or suggest some non-economic forms of resolution that work better than a monetary payment.
Because mediation isn’t binding, if you still aren’t able to agree on a resolution, you can move ahead with litigation.
Mediation should be distinguished from arbitration. Mediation is voluntary and, as mentioned above, nonbinding. Arbitration, on the other hand, may be compelled in certain circumstances, and the arbitrator is a decision-maker.
Tips for a Successful Mediation
A successful mediation starts long before the actual mediation. You’ll need to prepare by thoroughly evaluating the strengths and weaknesses of your case. Make sure you’re completely honest with your lawyer so that she or he has all the relevant information necessary to properly assess the case.
Work with your lawyer to evaluate your chances of success in litigation, as well as to determine how to respond to arguments your opponent is likely to make. You’ll also need to work with your lawyer to prepare a high-quality mediation statement.
Your first offer should be reasonable. If it’s too high or too low, you’re sending the message that you’re not really interested in negotiating a settlement. Of course, your opening offer needs room for negotiation, but don’t make it so unrealistic that you antagonize the other party.
Worry less about proving you’re right than reaching a resolution you’re relatively happy with. In mediation, the goal is not to win, but to find options that satisfy both of the parties.
You should always be respectful during a mediation. Insulting the other party is not likely to work in your favor.
Also, avoid giving ultimatums you don’t mean. Doing so means you’ll lose credibility and that your opponent probably won’t believe you when you later truthfully say something is a deal breaker.
*****
Members of this firm have represented plaintiffs and defendants in mediations and arbitrations and have also served as mediators and arbitrators. Please feel free to contact us if you have any questions about mediation or if you need help resolving a dispute.
Photo by MART PRODUCTION on Pexels
(original image has been cropped)
