Having a Great Claim is Only Half the Story - an Early and Fair Resolution is the Other Half
Our firm has handled close to 1000 labor claims, of which more than 200 were and are class action cases. A large number of these cases were claims we filed against Fortune 500 companies.
The fact is that very few cases ever go to trial. The reason is that each case reaches a point when the facts have been developed to the extent possible; meaning that there will always be some disagreement as to what took place.
The law is reasonably clear with the outcome dependent upon the version of the story that will be believed. Overriding the desire to have one’s day in court is the practical and reasonable desire to achieve a known outcome. In other words, predictability has substantial value and provides the basis for compromise.
MEDIATION PLAYS A MAJOR ROLL IN LITIGATION
Mediation is a confidential and voluntary effort by the parties to resolve disputes. It utilizes a trained neutral mediator to facilitate and lead the settlement discussion and it is favored and promoted by the courts. It is so effective that all judges order the parties to participate in mediation at some point in the litigation.
Mediation can be a very effective and powerful tool to achieving a client’s objective but only if the attorney fully understands how to make it work for his client.
There are critical differences between litigating and mediating and understanding those distinctions are critical.
The most successful attorneys are those that understand the combination of factors that add up to an outcome that everyone can live with and that makes sense to both parties. The skills that an attorney needs to bring together includes a through grasp of the law and his client’s case, his opponent’s strengths and weaknesses, an ability to listen, to be creative and the skill to present his client’s case in a persuasive manner.
Being pushy or arrogant will not win the day. Keep in mind everyone is participating voluntarily.
Although there are variations as to how a mediator will structure the meeting it is not unusual to begin with a joint session wherein he allows each side to briefly present his case without argument from the other attorney. At the completion of each of these presentations the mediator may then summarize what was presented. Through this process the mediator and the parties are able to identify precisely where they agree and where they disagree. This is key in determining where the mediator and the parties must focus their attention.
From that point forward the parties are separated into their own conference rooms and the mediator then meets with each side separately. He will hold multiple confidential discussions with each group articulating what he sees as their strengths and weaknesses. Through these separate confidential meetings he formulates an understanding of the case putting him in a position to guide each side to a fair resolution.
The mediator is not there to judge what the outcome should be. In addition to what everyone already knows he has a more complete understanding of confidential information that that each side shared with him. Given the fact that he has no obligation to achieve an outcome for the benefit of one side or the other his opinion carries a lot of weight and puts him in a position to bring the parties to a voluntary settlement.
A good mediator attempts to help the parties find common ground; he is not there to determine who is right. In this process the mediator will test each side’s position, pointing out weaknesses and risk. It is up to the attorney to effectively counter these arguments and by effectively doing so will send a message back to opposing counsel.
The fact is I have never seen a client who has just reached a voluntary settlement unhappy. Although neither side will get all they wanted or thought they deserved they have reached an acceptable resolution and that takes a load off their shoulders and that does feel good.
