Does Mediation Signal Weakness?

“I don’t care how much it costs.  I want you to sue them and I want you to be aggressive.  I don’t want you talking to the opposing attorney.  I want to serve them with papers.”

Parties in family litigation and partnership litigation usually come to me with one overriding instruction–fight regardless of cost.  Like the ancient Spartans, the instruction is usually to come back with your shield (i.e., victorious) or on it (i.e., you died trying).  In highly emotional litigation between family members or business partners, new clients are often almost universally opposed to mediation.

What Is Mediation?

Perhaps the opposition to mediation is a failure to understand what mediation is.  After all mediation is totally voluntary.  Moreover, nothing happens at mediation unless all of the parties agree to a settlement.  And what is said at mediation cannot even be used later on in the litigation.

At mediation the parties are coming together for purposes of trying to find a mutually agreeable settlement.  A mediator is a trained facilitator.  He or she is typically a lawyer who usually has legal knowledge and experience.  He or she knows about how lawsuits and trials work.  A good mediator also hopefully has knowledge about how to deal with objections, envy, pride, hatred and the other human emotions that make settlement difficult.  Many mediators are retired judges who can convincingly explain to the client about what will happen when the case goes to court (and that it may not turn out well).

In most mediations the parties sit in separate rooms and the mediator conducts shuttle diplomacy by going back and forth between the parties.  With this system the highly emotional parties do not have to see each other or justify themselves to the other party.  Each party gets a chance to discuss the case with the mediator.  Being heard is a very important part of the process in litigation among family members and business partners.  Mediation gives everyone a chance to ‘vent’ and explain their position.

Many parties will start a mediation with high demands and an aversion to compromise.  However, a successful mediator will often get a party to realize the folly of litigation and the wisdom of structuring a settlement.  (In many ways it is similar to how a used car salesman lets you sit in a room for long periods of time while he “talks to the manager”.  The attitude of opposition wears down with time.)

Is Mediation A Sign Of Weakness?

One client sent me an angry email for suggesting mediation to the opposing counsel.  The irate client called it the “white flag of surrender” and lamented that he wanted an aggressive attorney who would come out fighting.

Mediation in itself is not a sign of weakness.  It is not a sign that your case is weak or that you are weak.  In short an agreement to mediate is not an indicator of manliness.

For litigants who are afraid that mediation is a sign of weakness, there are ways to counter this impression.  The attorney can suggest mediation.  The attorney can explain to opposing counsel that he needs to ‘convince’ his client to attend.  However, business litigation attorneys are used to mediation.  The Los Angeles Superior Court judges used to require that the parties engage in mediation.  No attorney honestly looks at mediation as a sign of weakness.

What are The Benefits of Mediation?

The worst thing that can happen at a mediation is that a party attends but does not settle the case.  The best thing that can happen is that the case gets settled on advantageous terms.  When a party is looking at spending $80,000, $120,000, $300,000 or more on years of litigation, spending $3,000-$8,000 on mediation at the very outset of litigation is well worth the cost.

Every potential client who claims that he or she wants to fight to the death regardless of cost is usually the client who later refuses to pay or complains about the bill.

I always explain to the client that he or she has hired me for my advice and experience in this type of emotional litigation.  I am happy to litigate the case.  I will make money through litigation.  But often it is not in your best interest.  Juries can be wrong, trials can be expensive and, in the end, the court will not make your opponent apologize or even admit wrongdoing.  The remedy is often just money.  If you had to spend $300,000 to get a $100,000 judgment “because of the principle”, you may not have made a smart decision.

Mediation allows you to reach a settlement, end the lawsuit and move on with your life.  Isn’t it worth a try?

Los Angeles business litigation lawyer Laine T. Wagenseller has handled numerous successful mediations and helped clients fashion beneficial settlements.  For more information, you can contact Mr. Wagenseller at (213) 286-0371 or ltw@wagensellerlaw.com.