Mediation was a term unknown to lawyers twenty five years ago outside of some collective bargaining agreements. Today it has become an almost automatic step in the litigation (or even pre-litigation) process. Lawyers recommend it and clients accept it as a routine exercise in virtually every case. Like every other legal exercise, it comes at a significant cost to the client. Few lawyers or clients ever question its necessity. They should.
Fundamentally, mediation is a process whereby litigants (or pre-litigants) voluntarily engage in “assisted” settlement negotiations. The assistance is provided by a disinterested person, usually an attorney, who is supposed to encourage the parties to reach a settlement. Frequently (although unfortunately, not always) the mediator will provide the parties, separately, with an evaluation of their case in an effort to promote a settlement. Many cases are settled through mediation; many are not. Successful or not, mediations routinely cost thousands of dollars in attorney preparation time, cost of the mediator and client time spent at the mediation.
A client should expect that their lawyer has evaluated their case and should be able to provide the client with a realistic current evaluation of the strengths and weaknesses of the case. Why should a client have to pay a mediator to evaluate a case that the client’s lawyer is, or should be, in a far better position to evaluate? Why should a lawyer need a mediator to convince his or her client that the lawyer’s evaluation is a realistic one? Why shouldn’t a lawyer be able to convince opposing counsel to reach a settlement as well as a mediator? These are questions every lawyer and client should ask before agreeing to mediation with its substantial costs. To be sure, there are times when mediation is necessary and worthwhile, but not every time.
Older lawyers often lament the old days when lawyers settled cases without the need for the assistance of a third person who knows much less about the case than do the lawyers. Has mediation become a crutch for lawyers unable or unwilling to honestly and frankly evaluate a case? Is the additional cost to the client of mediation justified? These are questions lawyers and clients alike should be asking. How many are?
Paul Liles, Liles Law Firm, LLC
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