Earlier this summer, I was on a panel of attorneys at a continuing legal education seminar dealing with mediation. The session, at the State Bar of Wisconsin’s Annual Meeting & Conference in June, was interactive: Attendees participated by answering certain questions using Poll Everywhere via their cell phones, and panelists responded to the answers.
Some of the attendees’ responses were expected. Some surprised me.
Michael Pollack, Tulane 1978, practices in civil litigation with Michael Pollack Mediation Services LLC, in Milwaukee and Waukesha. He serves as a mediator and arbitrator for organizations dealing with business, financial, real estate, construction, and consumer disputes.
What Are You Afraid Of?
One in particular was very surprising. When we asked what attorneys were most afraid of in mediation, the most frequent answer, by far, was finding out information harmful to their case.
I don’t know what those attorneys were thinking, but I would much rather find out what is wrong with my case at mediation – when there is still time to try to fix it or cut your losses – than during trial, when it is too late.
Preparing Twice Is Not Always a Bad Thing
Early in my career, an attorney who I was working for told me that he didn’t like mediation because it forced him to prepare his case twice.
I understand that attorneys are pressed for time and that it can be expensive to prepare your case for trial, and then to do it again – maybe getting more evidence or witnesses, or researching additional legal issues. But after I tried several cases, I realized that I always thought there was something I could have done better had I been able to do it again.
Later in my career, I had the opportunity to do mock trials in preparation for some big cases. I always learned many new things about the case and how a jury might perceive it, and usually had to retool my presentation and arguments.
That always benefited my client and subsequent settlement negotiations or trial strategy.
Mediation Helps You Become Better Prepared
Mediation is supposed to be a consensual process where parties in dispute talk about possible resolutions or settlements. They should also discuss the costs of preparing and presenting a case at trial, the risks of losing, the likelihood of an appeal.
If you suddenly learn new information about your case that makes you rethink its settlement value, that is a good thing. It does not mean you have to throw in the towel and accept your opponent’s settlement offer then and there. You can ask for a continuance to check out the new information and see if there is any way to counteract it.
Then you can return to mediation, or proceed to trial, better prepared than before.
Either way, mediation will have served a valuable purpose – not one to be afraid of.
The author thanks James C. Reiher, U.W. 1969, of DeWitt Ross & Stevens SC, for his editorial assistance.
This article was originally published on the State Bar of Wisconsin’s Dispute Resolution Blog. Visit the State Bar sections or the Dispute Resolution Section web pages to learn more about the benefits of section membership.
