The Goal of Mediation Is Not (Necessarily) Settlement

To some, the title of this posting will sound like rank heresy. If the goal is not settlement, what is it? Why are we paying this person to shuttle back and forth like Henry Kissinger if we might end the day with an empty sack?

In my view, the primary goal of mediation of a tort case is knowledge, with settlement being a possible byproduct. The idea is to learn whether all sides are close in their thinking on the value of the case. If they are, settlement is likely to follow; if they are not — and cannot be convinced to change — settlement is not likely to follow.

Opposing lawyers who have worked with each other a long time can sometimes "cut to the chase" and determine whether their clients are on the same page without a mediator. For most people, however, the adversary system gets in the way of frank discussion, and the assistance of a third party (i.e., the mediator) is necessary.

I tend to divide most tort mediations into two phases. During the first phase, I try to determine in my own mind whether the parties are actually thinking in the same value range — whether or not their public positions are close. Depending on the facts of the case (and the parties and counsel involved) this process can range from relatively quick to incredibly drawn out. If, in the end, I think the parties really are in the same ballpark, I move the process into phase two and help the parties turn their general understanding into a specific agreement, working to help bridge any remaining gaps.

Where I part company with some mediators is in what I do if I believe that the parties (in their heart of hearts) are not close. In such cases, I do not try to change anybody’s mind or even nudge the parties toward a settlement. It’s their case, not mine. I believe that people should not be pressured in any way by the mediator to change their minds during a mediation. Like most important matters, decisions to settle should not be made until all relevant information has been assessed and each party truly believes that a settlement on the terms available is in his or her best interest. This normally takes time.

If, during the process, the parties learn that they are looking at the case differently, it is appropriate to adjourn the mediation and allow some time for everybody to reevaluate their options in light of new information. Before adjourning, however, the parties should determine what steps need to be taken in the interim before scheduling further mediation sessions. For example, are more depositions needed, or expert opinion necessary to support certain facts being asserted? It is certainly appropriate for the mediator to assist the parties in this endeavor.