Mediation has a lot of postive aspects and certainly is a valid tool in the settlement of cases. However, I use mediation primarily because it is the insurance company and defense counsel who insist on the process. I start from several biased thoughts about mediation. The first is that it has grown into an industry from a situation where great trial lawyers negotiated their own cases directly with defense counsel or the insurance industry and I am not convinced it is an improvement except in specific cases. Cases involving multiple parties or carriers, cases where there are complex issues and cases where a client or a party needs the experience would be the exception to my bias. The second is the mediator is not my friend nor that of my client. The mediator has one
goal – settle the case. My goal is to achieve the best possible settlement I can for my client. Therefore, for me at least, the mediator has a limited role – to communicate information and not to tell me what the case is worth, what problems I have or any other advice about my case evaluation. The third one is that there is a conflict in the situation where the mediator is paid by the hour. My client and I want our money and to go home as soon as possible which is not always the interest of the mediator.
One of So my rules is thatI rarely agree to mediations lasting more then 1/2 a day. I have mediation on Friday The insurance company and defense counsel have pushed for a full day. I have refused. If my partner and I haven’t figured out if there is a chance of settlement in the fir st one hour or so we are wasting our time. Plus: it is a proven fact that 80% of the progress in negotiation is made in the remaining 20% of available time. You schedule it for a full day and the great odds are the settlement will happen at the end of the day. Our policy is 1/2 day mediations and we have a hard rule that we leave at the end of the time no matter what we are told about sticking around unless we are waiting for the signed settlement memo.
I know other people have different views, but for me this is has been my consistent policy and attitude and we have managed to make some very significant settlements plus our track record is better then those who approach it differently.