The Mediation Process Should Begin As Soon As Defense Counsel Becomes Aware of the Dispute

By Jim Bleeke
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The vast majority of legal disputes are resolved through settlements, not trial. Recognition of that fact prompted courts around the country to begin requiring pre-trial mediation in nearly all lawsuits before a case is allowed to go on to trial. Mediation is defined in Merriam-Webster Dictionary as “intervention between conflicting parties to promote reconciliation, settlement, or compromise.” In the world of litigation, mediation can refer to the one-day or half-day meeting with an impartial facilitator in an attempt to resolve litigation that has been ongoing for some time and avert the necessity of trial. However, because mediation necessarily involves communication between adversaries in the litigation process, it is important to realize that mediation is a process or a journey that begins as soon as the dispute is known. It is short-sighted to forget that the person on the other end of the telephone or who is opening their letters and pleadings early on in the case that ultimately will be the person who will assist with deciding whether the case is resolved short of trial. Ill-advised comments early in a case may create animosity that ruins the prospects of a successful mediation before the parties ever set foot in the office of the impartial facilitator charged with trying to help the parties reach an agreement.

At SweetinBleeke Attorneys, we realize that our adversaries in litigation may ultimately be the same people who we are asking to “be reasonable” in resolving a case at a value that our clients consider appropriate. Therefore, whenever possible, we do our best not to alienate the attorneys (and even opposing clients) as we develop our defenses. We believe that cases can be firmly and aggressively defended without name-calling or condescending remarks that our adversaries will likely remember when it comes time to try to settle a case.

Consequently, our first step in most cases is to contact opposing counsel and simply listen to their perspective to see whether there are any issues on which we agree, or to determine in some cases whether another defendant may be a more appropriate target for the litigation. We see no reason to delay that communication until after expensive written and oral discovery or battles regarding technical legal issues. While we certainly are willing to go to the mat on legal and factual issues when that is necessary, we have found that it is much less expensive and much more effective to engage in a reasoned discussion with our adversary at the earliest possible stage of a dispute. By doing so, we often persuade our opponents to dismiss our clients or to resolve matters for very reasonable settlements with the minimum of legal expense. We believe our clients appreciate that sensible approach and that it will serve both our law firm and our clients very well in the long run.

In those cases that actually do reach formal mediation, we continue our approach of attempting to truly listen to our adversary and to seek agreement wherever it exists. In our experience, once our adversaries feel heard on at least those points where there is agreement, or even where we respectfully disagree, our chances of achieving a settlement at mediation greatly increase. For a more detailed discussion of our approach at formal mediations, please refer to our article entitled, “Mediation—What Plaintiffs Really Want,” which will be published in the December 2009 issue of the Defense Research Institute’s For the Defense magazine.

We welcome your comments or suggestions based upon the issues raised in this blog or discussed in that article.