If I suggest mediation or agree to mediate it will be perceived as weakness by the other side, which is not in my client's best interests.
My client wants me to champion his/her cause, and I will be perceived as backing down and less of a warrior if I suggest mediation.
In the modern litigation arena, zealous advocacy of a client's true best interests requires the attorney first and foremost to maintain a keen eye on the tangible and intangible costs of the adversarial process, regardless of any perceived strength or weakness related to strategic decisions. Further, the explosion of mediation popularity in recent years has virtually eradicated any misguided stigma it may have once had.
Proper advocacy often requires advising our clients to adopt positions or undertake actions. In the end, decisions must be left to the client, but that doesn't mean we are any less of a champion for their cause simply because we strive to instill objectivity in the decision-making process. Discussing the option of mediation is virtually essential to keeping a client apprised of all alternatives so that an informed decision can be made. That discussion, of course, can always include a confirmation that the attorney is fully prepared to go to battle at trial should the client decide upon that course of action.
Since mediation won't likely be successful, my client's resources will be better spent commencing or continuing with litigation.
Mediation has a high likelihood of resulting in settlement (approximately 85% nationwide). Even in those cases where the parties or positions are especially polarized, the success rate can be surprisingly high, depending on the skill of the mediator. Given the increasingly high costs of litigation, a comparatively small investment of time and money in mediation is, arguably, always appropriate - particularly in light of the alternative.
My client's position is so solid that going to trial is without significant risk.
Trial is always risky, no matter how much we attorneys might want to "believe our own press" about the strength of our client's case. One of the real benefits of mediation is that you and your client will no doubt have a chance to hear about any weaknesses the other side perceives, and it is simply prudent to also hear what an objective, disinterested non-party (the mediator) may have to say about competing positions.
The only real upside to mediation is that it provides a vehicle for information-gathering, but I can get that through discovery anyway and I just don't trust the other side to voluntarily disclose anything that doesn't support its position.
The mediation process does require some degree of trust in order to be successful. That trust, however, must be focused primarily on the mediator's skills and his/her ability to maintain the duty of strict confidentiality. That duty is the hallmark of the mediation process, and is the critical component that allows the participants to move toward a resolution of the dispute that they themselves determine. Whether or not discovery has commenced or been completed, or whether the suit has even been filed, the providing of information to the mediator as a complete neutral consistently has a dramatic effect on the dispute and the potential for settlement. As long as each participant believes there is some degree of desire by all to reach a settlement, and each trusts the mediator, the chances for a successful outcome are significantly greater than in any other forum.
"I must say that as a litigant I should dread a lawsuit beyond almost anything short of sickness and death."
Judge Learned Hand
"To fight and conquer in all your battles is not supreme excellence; supreme excellence consists in breaking the enemy's resistance without fighting."
Sun Tzu -
The Art of War
Chief Justice Warren Burger
“Discourage litigation . . . . Persuade your neighbor to compromise whenever you can. Point out to them how the nominal winner is often the real loser – in fees, expenses, and waste of time.”
"We have served, and must continue to see our role, as problem-solvers, harmonizers, and peacemakers, the healers - not the promoters - of conflict."
"Litigation involves the exercise of force through judicial compulsion, to impose your will on your adversary"
Frederick L. Whitmer
"You can no more win a war than you can win an earthquake."
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