While statistically, 99% of all cases settle, some cases take longer than others to get there. Moreover, some cases require the assistance of a third party to help one or both party or attorney get past whatever it is that is holding the case up from resolving itself.
I, for one, have been skeptical of mediation in a number settings. The first is at the onset of a complex matter where one party is pushing for mediation and there hasn’t even been the most basic exchange of information at that time, much less formal discovery. I have even seen cases where the party with the documents will not provide them in advance of mediation and will only bring them to mediation and take them with him at the end. The second setting that gives me cause for pause is when parties attend mediation without counsel and there is a great imbalance of power between the parties (consistent with the imbalance of power that permeated the parties’ relationship). In these instances, unless there is a strong mediator that will protect the disadvantaged spouse, I have often seen such mediations result in a "settlement", but one where the disadvantaged spouse got a "deal" that was neither fair nor reasonable, if not unconscionable. The problem in these cases is that often, once there is an "agreement", the person that got the great deal refuses to concede anything. Thus, a method meant to avoid litigation can often create litigation.
However, in this day and age in New Jersey, the court mandates mediation at two junctures of the case (unless there is a domestic violence restraining order.) The first is early on in the case when the parties go to custody and parenting time mediation conducted by court staff. This is meant to ferret out the true custody dispute. That said, I make sure that my client is prepared before they attend this mediation because it often results in a resolution of the issues and I want that resolution to be one that my client actually has considered in advance and is comfortable with. As such, we often prepare a parenting plan, in advance, which deals with the regular parenting time, legal custody, holidays, vacations, etc.
The second mandatory mediation is economic mediation which takes place after an Early Settlement Panel. Attorneys usually are required to attend with clients. This is often the time when a case that is more than your run of the mill case will settle. By this time, it is expected that most, if not all of your discovery will be done. Unlike the Early Settlement Panel where the panelists have a short time to consider the issues, the mediator can spend more time to flesh them out and more importantly, facilitate a dialogue and negotiation.
In some cases, the impartial voice of the mediator helps one or both parties get past an issue that they are stuck on. Put another way, when either the client’s attorney has told the client time an again of a probable result, or if the attorney is presenting the strongest position regarding an issue as an advocate, the mediator, who has no axe to grind, may be just what is necessary to put the issue to bed. In other cases that I have seen, sometimes one of the attorneys doesn’t handle exclusively family law matters and/or is otherwise less confident. In these cases, the mediator essentially can let the attorney know that the deal is fair.
I have been involved in cases where the parties were more than $20 million apart and seemed headed for a trial that would have lasted several months. However, after 8 to 10 days of hard work at mediation, the case settled, saving both parties tens if not hundreds of thousands in legal and expert fees that would have been incurred at a trial.
The bottom line is that most people truly want to settle their cases in a fair way. We always hear anecdotally that cases that settle come back to court far less often than cases that are tried. We also hear that people that settle their cases are far more satisfied with the result than if they tried the case. In a trial, the litigant gives up control of their life to a judge that doesn’t know them and will only hear bits and pieces of their story – along with the hundreds of other cases they have. Mediation with a skilled mediator, where the playing field is level, the parties both have all necessary information and the imbalance of power is kept in check, is excellent way to keep control of your life and resolve your matter in a fair and beneficial way.
Check back for future entries regarding arbitration and trial practice. While most cases do settle, if litigation is required, we are skilled at handling matters that require a trial, as well.