What is the best way today to approach and achieve a settlement – direct negotiation or settlement? At that time, it seemed to me that mediation had a distinct advantage because it a) brought all parties together face to face, b) involved a neutral who could be a facilitator and an evaluator, if needed, c) was a fixed process for negotiations rather than a haphazard effort to try to settle a case directly, and d) would involve principals or persons who were present who had a direct interest in resolution (e.g. the parties, their appointed representatives or their insurers).
Recently I negotiated a professional negligence case against an insurance agent who sold a bogus “tax free” employee welfare benefit plan to a client. My colleague on the other side told me he does not mediate cases. He believes he can get a deal done directly, and his clients have found that many mediations are a bust. Essentially, he believes he has a better chance of getting a settled without the cost and risk of a failed mediation. The problem I saw was it has taken a month to settle the case and many hours of back and forth both with my colleague and my client, so that the cost of this approach is probably close to what a day long mediation might have cost. So is this colleague of mine correct in his approach? Is he doing a disservice to his clients by discouraging a course of mediation for his client.
Second, it seems that every day I receive a note that someone new is doing mediations and is making a career change from a civil litigation practice. These are lawyers who have been advocates their entire career who now think they can become neutrals, which is a totally different role. Who knows how effective they will be? I hear complaints from time to time about some mediators who are just not effective in this role, so the self-proclaimed mediator may not be suitable for the role. It certainly seems to me that the mediator “industry” is a bit overrun, and if there is a decline in the need for such, it may be clogged.
Third, the “good” mediators who have established themselves seem to be getting the business. I am guilty of suggesting the same mediators when asked to supply a list of desired ones. Why do I go back? Because I have confidence in those whom I have used, have a relationship of trust established, and know how they work. So, I am comfortable. There are some I have used whom I will not use again because in my view they were not effective. So as time goes by we seem to drift towards a certain group of tried and true mediators, and disregard new ones. That does not mean I do not accept a mediator suggested by my adversary. I do, but it is often someone who is either on my “list” or someone I have experience with in some professional capacity or has a strong positive reputation for getting closure.
The final point here is that in managing a case, careful thought must be given to the best alternative to trying to resolve the case. A private mediation may not be right for the case for many reasons. So, from the plaintiff’s perspective, your strategy may be to prepare a comprehensive demand letter and build a strong case for settlement. If your adversary responds then perhaps a dialogue can take place regarding the best means trying to resolve short of trial. That way the parties can either enter into direct negotiations or find a suitable circumstance for using a neutral.