Why Should I or My Client Mediate?
Dear Litigator:
You asked me why you should advise your client to attend a mediation session and pay for you and the mediator. You asked me what a mediator can do for your client better than you, a great litigator and negotiator, can do yourself. And you asked me why you should select me to mediate your case.
I’ve been mediating disputes since 1993. I chaired the ADR Committee of the ABA Family Law Section, and co-chaired the Collaborative Law Committee of the NYSBA Dispute Resolution Section. I mediate on half a dozen panels of the NYS Supreme Court, including the Commercial Divisions of both NY and Kings Counties, and I serve as a mediator and arbitrator on the Part-137 Attorney-Client Fee Dispute Panel. I also serve as a mediator for the SDNY. The former-administrator for the Commercial Division told me that my settlement rate was better than most. (For more specifics about me, see my attorney profile page, and to see what others have said about my mediation skills, see my testimonials page. Though my litigation practice is devoted exclusively to matrimonial and family law, I mediate disputes in all areas of conflict.)
I’ve mediated disputes in which the parties have spent hundreds of thousands of dollars and many years litigating, and in several hours, left my conference room shaking hands. In several instances, though we didn’t agree on a resolution, we did agree on a process by which the dispute would be resolved. In others, we found ways that each party can obtain what they really wanted so that both parties ended up better off than they were before. In yet others, we found ways to “expand the pie” so that, when divided, each side would still “win.” In short, while mediation settles disputes, prevents the expenditure of additional legal fees, and prevents the relationship between the parties from deteriorating further (often even healing it), the better reason to mediate is that each party can often get a better result by mediating than they can by litigating. And by obtaining the best result for your client, you’ll have earned their trust and gratitude and, hopefully, more business and more referrals from them.
Moreover, because mediation is a fully voluntary process, you’re always free to walk away from a deal that doesn’t suit your client. You get free discovery, an opportunity to test your adversary’s strongest arguments, and have your own reality-tested. Your client gets to see you in action and can see how their claims will play out and withstand scrutiny. Often more important, your client gets the opportunity to look the other party square in the eye and tell them how they’ve been wronged. They, therefore, get an even better “day in court” than they could get in an actual courtroom. Usually, it is this that allows their healing to begin and allows them to then accept a reasonable result. A result voluntarily entered into, rather than by coercion, makes it more palatable, acceptable, and likely to be honored, than a decision by a judicial officer would be.
Professor James McElhaney, in one of his litigation practice columns, considers the age-old conundrum of whether I should reveal my smoking-gun evidence to my adversary pre-trial, or save it for my big “Perry Mason” moment at trial. He concludes that because more than 99% of cases settle without being decided by the decision-maker, I lose the power and value of my best evidence in 99% of my cases if I resolve to keep the evidence hidden for trial. He argues that my clients are better off if I use that smoking-gun evidence in negotiations to leverage a better deal for my client than I could by negotiating without revealing my ace in the hole.
Even a great negotiator, can, therefore, use the services of a mediator who brings several valuable mediators’ skills to the table. A mediator can ensure that the temperature in the room remains cool, something an adversary cannot do without inflaming the ire of opposing counsel. The mediator can ask for clarification in a non-threatening way, ensuring that everyone understands the claims propounded by each side. A good mediator can reframe a claim or demand in such a way that other side can hear and deal with them, without becoming defensive or confrontational. And the mediator can point out weaknesses in each side’s case in a way that can be accepted by the party and counsel, knowing that the mediator is a disinterested, neutral, “honest broker” in the proceedings. The mediator can coax the parties from their typical positional bargaining positions (in which there must be at least one, and possibly two, losers) into principled negotiations in which they can each end up winning. The mediator can convert the negotiations from one in which threats are used to browbeat the other, into an uplifting exercise, in which each party explores how they more ahead. (As Machiavelli teaches, all conflict is an opportunity for improvement, advancement and better relationships and outcomes.)
In sum, with a good mediator, mediation offers you and your clients only advantages and no disadvantages. In fact, as I point out in an NYCLA article, Mediation Techniques Every Litigator Can Use (available for free download at on our Publications page), the techniques used in mediation is one every litigator can implement in their own daily practice for better results.
I invite you to try it. Feel free to call on me if you’d like to do so, or if you’d like me to elaborate on any of these points.
With warm regards and good wishes,
Chaim Steinberger