What Will It Cost You Not to Mediate?

By M David Halpern

In most areas of the country, mediating a case prior to trial is part of the conversation at some point in the process. Among the factors discussed is always the cost of the process. Do I want to pay the mediator's fee and, on the defense side, do I want to pay additional attorney's fees knowing I'm still going to end up in the court room? There is evidence that you cannot afford not to mediate your case. Randall L. Kiser reported in the New York Times on a study he co-authored examining 2,054 civil cases that went to trial from 2002 to 2005. The study suggests the reframing of the discussion from "should I mediate? to "I know I have to mediate so what mediator should I chose?"

According to the article, of the cases that went to trial (the vast majority do settle), "plaintiffs made the wrong decision not to settle when the opportunity presented itself in 61% percent of the cases and the defendants in 24% of the cases. In just 15% of the cases were both sides right to go to trial." "On average getting it wrong cost plaintiffs $43,000" and while defendants "were less often wrong about going to trial, the cost was much greater, about $1.1 million."

All too often client expectations are set early on in the process and become "cut in stone." Plaintiffs generally believe that they are in the right and can't understand why everyone doesn't see that fact. They will also have a view on the worth of their case from a personal standpoint. It is human nature to think that "ours" has more worth than others'. This is also true for defendants; the evaluators look at the damages in a much more generic realm without interpolating how the plaintiff's personality will affect the ultimate determination (with emotion intermixed.)

A mediator can challenge each position in a manner that can bring realty to the emotions and certainty to an uncertain process. One of the real values of this process is that attorneys are reluctant to challenge their clients' beliefs because they fear their client will view them as less than a true advocate for the cause. The mediator creates a buffer, so that positions can be challenged without causing damage to the attorney/client relationship if settlement is not achieved.

Bottom line, while this study is far from determinative on the subject, it strongly suggests that opting to meditate a case may be the best economic decision the attorney and his client will ever make.

If you need help in deciding if your situation can be best resolved through mediation, contact M. David Halpern 814-940-1565 and talk to him about your concerns. David practices mediation and arbitration of commercial, labor, personal injury and medical malpractice issues, both privately and for the court systems.Visit http://www.halpernmediation.com for more information.

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