As lawyers, we often become preoccupied with winning and losing. We are competitive by nature which makes us susceptible to a “win at all cost” mindset. Litigation provides a means for vindicating the rights of our clients and for enforcing or challenging an existing law which we believe is important. There is no doubt that in some cases, it is necessary to go through the justice system in order to obtain justice for our clients.

In most cases, however, litigation is not the ideal solution for achieving that sought after “win” that lawyer and client are seeking. Rather, as will be discussed below, litigation is often an impediment to achieving a “successful” result. Mediation, on the other hand, provides a desirable alternative for reaching a solution that can make everyone feel like winners.

By reexamining the way in which we view “winning” or “success”, we can obtain a better understanding of our role as lawyers and the appropriate method for achieving the best outcome for our clients.

1. A win may not be a “win”

How many times have you “won” a case by obtaining a favorable verdict for your client in court or in arbitration, yet either you or your client, or both, felt like you had just lost?

Well, the reason for that is undoubtedly because the litigation process is itself contentious, exhausting, time-consuming and inefficient. Your client may have been awarded money, but the time, expense, and emotional investment it took for her to obtain that result made it seem like a “pyrrhic victory”. And what about you, the lawyer? Sure, you were paid for your time, but the stress, the sleepless nights, and the tumultuous dealings with opposing counsel (not to mention the disillusionment of your client) made you wonder whether it was all worthwhile.

Was this result avoidable? Perhaps. Mediation may have worked out better for all parties involved. Of course, it would only have worked if your client fully understood what mediation is and believed in the mediation process for resolving the dispute. As your client’s counsel, it is up to you to fully inform your client of all of the dispute resolution alternatives so that the client can make the appropriate cost-benefit determination. Here are some things to consider when counseling your client about mediation:

2. What is Mediation?

Mediation is a process in which a neutral, third person facilitates communication between parties who are having a dispute so that the parties themselves (rather than a court) can determine a workable solution that is agreeable to both parties. The mediator does not decide the case or express judgments about who is right or wrong, but merely listens to the parties and restates their interests, so that each party can better understand the objectives and concerns of the other. It is through this process of cooperative communication that the best possible solution for all parties can be obtained.

3. How Mediation Can Make Everyone Winners

A. Reduce Costs

Litigation is a very costly proposition. A lawsuit can take many months or even years to complete. In addition to legal fees, there are additional costs, both monetary and non-monetary, for the client to consider. There are out of pocket expenses that the client may be responsible for, including filing fees, court reporter fees, jury fees, transcript fees, travel expenses, and the attorney’s office expenses.

In addition, there is the cost of the client’s time in submitting himself or herself to the litigation process, including taking part in all phases of litigation, from investigation to discovery (including depositions), preparation for trial, and the trial itself. This is a substantial investment for the client, who may not be fully aware of the amount of time that is required when beginning the litigation process.

Mediation, on the other hand, is usually completed in one or two days. If the mediation is successful in bringing about a settlement, there can be a substantial savings to the client in legal fees, court costs, and the client’s own time and expense. This is certainly a factor that the lawyer and client should consider at the earliest stage of the litigation process.

B. Remove Uncertainty

One of the great benefits of mediation is that it takes the uncertainty out of the litigation process and allows the parties themselves to determine their own destiny. There is a great value to the client in eliminating this uncertainty.

Hypothetically, what if someone could accurately gauge your chances for success at trial and estimated that you had a 70% chance of obtaining a verdict in your client’s favor. You would probably feel pretty good about your chances and be eager to take your case to court. But is it really worth it to take that 30% risk? What is the potential loss for your client? Even if the client is successful, there may be an additional risk in collecting the judgment, or a risk in the opponent taking an appeal.

By way of comparison, what if you had an injury and a doctor told you that the problem could be resolved through surgery, which had a 70% chance of success. Would you be as enthusiastic to go forward with the surgery, knowing that there was a 30% chance that the injury would not be any better after the surgery. Most people would probably be hesitant to elect surgery, knowing those odds, as well as knowing that there are risks of complications following surgery, and that even successful surgery requires rehabilitation afterwards. It is safe to say that most people would elect more conservative treatment and would resort to the surgery only as a last alternative.

The question then is why people are risk averse when it comes to decisions concerning medical treatment, yet risk seeking when it comes to litigation. One answer may be that the client may not fully understand the risks of litigation in the same way they understand the risks of surgery, which are usually explained in detail by the surgeon. The client also might not understand that he or she has alternatives to litigation and what those alternatives involve.

It is our responsibility as counsel for our clients to fully apprise them of the risks involved in litigation and to inform them of alternatives which can remove the risk and uncertainty. In so doing, the client will be able to give an “informed consent” to litigation, or to be armed with information to choose a less risky alternative such as mediation.

C. Allow for Interaction/Closure

Another benefit to mediation is the opportunity it provides the parties to face each other and air their grievances in a setting that is safe and confidential. The parties are informed by the mediator that everything that is said in the mediation room will be kept in confidence and neither the mediator nor any of the parties can be called to testify in court as to what occurred at the mediation.

Because of the confidential setting of the mediation, the parties are more at ease to discuss the issues directly with each other. Unlike litigation, when the attorneys present the clients’ interests for them in a detached, legalistic manner, the parties at mediation can speak from their heart and convey their true interests themselves, in their own words.

Although the presence of lawyers at the mediation may make the parties somewhat more reserved in expressing themselves completely, the mediator should indicate a desire to hear mostly from the parties themselves and minimize the role of lawyers in this process. On the other hand, the presence of lawyers and the mediator provide a benefit in serving as a buffer between contentious parties, in preventing the mediation session from becoming overly heated and counterproductive.

It may come as a surprise to some lawyers that although civil cases are about money, the clients are not always only concerned with monetary compensation, but are also seeking a more basic personal satisfaction or self-actualization. The awarding of a money judgment usually falls short in making the party whole. A more basic need is in confronting the other side to express to them directly what is bothering them and to hear what the other party has to say. Sometimes mediation reveals that money is actually a secondary concern to a different underlying interest, which if uncovered, can lead to a quick resolution of the dispute, as the money issue becomes easier to work out.

Even if the mediation does not result in an ultimate settlement of the case, the parties can feel satisfaction that they confronted the other and made an effort to resolve the matter amicably. The parties can feel that they have achieved a “closure” which may put them at ease, whether or not the case proceeds through the legal system.

D. Preserve Relationships

While trying a case in court is a death knell to any future relationships between the litigating parties, mediation can serve to preserve relationships, which can be of immeasurable benefit to the parties. Certainly, in cases of domestic relations or business disputes, mediation can provide a benefit that extends into the future, well beyond the specific issues that are the subject of a present controversy.

Your client will often place a great value on preserving a relationship or at least the opportunity for having a relationship in the future. This potential benefit, which can come about through mediation, should not be discounted.

E. Keep Client Happy

Our primary goal as lawyers is to serve our clients, for without clients, we have no business. A client that has gone through a difficult lawsuit (win or lose) is likely to be somewhat disenchanted with the legal process. Rightly or wrongly, that client may identify that difficult experience with their lawyer and hence, seek to avoid utilizing the lawyer in the future.

Mediation provides attorneys with an opportunity to keep their clients’ happy by providing them with a feasible alternative to going through a trial. A positive experience in mediation makes it more likely that the client will turn to you in the future, as you will be identified as someone who is truly acting in their interests, rather than someone who is merely seeking a “win” through an adversarial process.

4. End Game (Conclusion)

It does not take a courtroom victory for us to achieve a “win” for our clients. Mediation is a means for making everyone winners by reducing costs, removing uncertainty, preserving relationships, allowing for personal interaction between the parties, and keeping our clients happy. We must remember that we are not merely litigators, we are first and foremost problem solvers. As problem solvers, we must examine and communicate to our clients all of the possible alternatives for resolving a dispute. An examination of these alternatives will likely reveal mediation as being a desirable option for achieving a successful outcome.