The Resolution Advocate: Tips on Getting to the Goal Line in Civil Litigation

Cite as 4 Litigation Commentary & Rev. 181 (November/December 2011)

DIRECT NEGOTIATIONS v. MEDIATION – WHY THE MEDIATION PROCESS OFFERS MORE

In the past, a case either settled because the lawyers negotiated that settlement directly, or it settled on the courthouse steps at a settlement conference overseen by a sitting trial judge, other than the trial judge, a day or two before trial.  Things are different now.  Presently, court systems are designed to encourage settlement early in the lawsuit process and to encourage these settlements by offering different alternatives to resolution. The most common alternative is mediation, either under a court-sponsored program or through private mediators. The latter is an aspect of our profession that has flourished over the past 25-30 years as mediation has become the alternative resolution method of choice.

The choice of mediation as an avenue for resolution of a dispute has been facilitated by a more aggressive court case management system requiring regular status and case management conferences.  It is a rare occurrence when the agenda for one of these conferences does not include a discussion of setting the case for mediation using either the court services or a private mediator.  This institutional push for mediation may leave one with several questions.

What happened to direct negotiations?  What failed in the more informal process – the old-fashioned manner of settlement?  I have several thoughts:

First, while there are instances in which lawyers can directly resolve a case, a mediation allows the parties to have a period of time – a half day or more -- to devote to a discussion of the settlement of one case, one matter, without interruption.  As a result of this process and in preparation for it,  parties and their counsel are forced to get to know the case, conduct discovery or exchange information informally beforehand, and ultimately review the matter with the client for purposes of assessing the case’s value.  In other words, there is some pressure, like a trial date, to force the parties to consider the case and whether settlement is the better alternative than incurring the expense and risk of trial.

Second, the mediation process allows one side to educate the other side about their client’s case.  I have been to many mediations where I knew the other side did not have a full appreciation for my client’s case.  Once they read our mediation statement, saw our visual presentation, and studied the case, they were much better educated about its value. That level of understanding and appreciation would not have happened if we had continued litigating and negotiated haphazardly.  Simple demand letters are not always well accepted, no matter how comprehensive they are.  The mediation process involves a better means of fully educating the parties about a case so long as the lawyers and their clients do their respective jobs of educating those involved and presenting their case.

Third, a neutral is involved who collaborates with the parties and often performs an evaluative role, giving the parties views on the issues in the case and communicating between them from a neutral perspective.  This gives the parties an “outside” resource for evaluation of the case; presumably, this evaluation is unbiased.  It brings an additional source of information to the process of negotiation, rather than having lawyers trying to settle from their “adversarial” perspective.

Fourth, a mediation provides a verification to a settlement. That is, if a settlement is reached, the fact that it was negotiated through a neutral provides more credibility to the chosen result.  An insurance claims representative can report to his or her employer that this was a mediated resolution through a competent neutral that brought the parties to the point of settlement.  That looks good in the claims file and in the final report on the case to the claims persons’ supervisors.  This verification process can also be helpful to an attorney who is representing an unsophisticated or reluctant client.  It can help that lawyer gain and maintain client control through the knowledge and recommendations of the mediator.

Fifth, a mediation provides a forum, not only for discussion but also for memorializing the essential terms and conditions for settlement. That is, not only are the terms and conditions of the settlement memorialized in a written memorandum of understanding, but also the parties can outline the time sequence for executing closing papers, filing dismissals, paying consideration and execution of the terms of settlement.

This is important.  Recently, I was co-counsel in a case in which another lawyer I was working with handled the negotiations directly with opposing counsel.  The negotiations were sporadic, and the process was delayed because there was no timetable for presenting closing papers.  It took weeks to bring the matter to a final conclusion because of this process.  Simply stated, counsel lost control over the negotiation process, and it just got away from them.   If the parties are present at the same place on the same day, the whole process can be ironed out, and the settlement can be concluded efficiently.

I am not saying that all cases should be mediated. What I am saying is that a mediation provides advantages to the process of closure that are not present in direct negotiations.

Let me hear your views.  Email me at This e-mail address is being protected from spambots. You need JavaScript enabled to view it .

Good Mediating. . . .

Mr. Kornblum has been a specialist is civil trials, arbitrations and appeals since graduating from Hastings College of the Law, University of California in 1966.  He is the principal in his San Francisco based trial firm, Guy Kornblum & Associates.  He is certified in Civil Trial Advocacy by the National Board of Trial Advocacy and is a Charter Fellow of LCA. He is also a Life Member of the Multi-Million Dollar Advocates Forum, a Platinum Member of The Verdict Club, a Silver Member of the Elite Lawyers of America, and a Legends Society Top Lawyer (Personal Injury).  He has been a Super Lawyer each year since 2006.  He is co-author of  “Negotiating and Settling Tort Cases,” published by Thomson West and the American Association for Justice (formerly Association of Trial Lawyers of America). His firm’s website is www.kornblumlaw.com.  Mr. Kornblum is a strong advocate for mediating his client’s cases before going to trial or arbitration.