Saturday, May 4, 2013

Is it Worth It?

Clients are more demanding than ever in evaluating whether the expense of litigation is worth the potential gain.  Mediators, therefore, should always inquire about each disputant's agenda early in the process.  For the Plaintiff and her lawyer, the questions revolve around how much more will they get if they invest in more discovery, spend more hours opposing pivotal motions, spend more money getting witnesses to testify on their behalf.  Are they at the mediation to find that out or to settle for what they may get after a Motion for Summary Judgment has been denied?  For the Defense, it's sometimes a question of how much they will have to spend if they don't settle at that time, in order to get a better result than the one offered at the time of the mediation hearing.  Not all parties come to the mediation with settlement as their ultimate objective!

I find that very often the mediation of a litigated dispute is, in fact, educational.  One side learns what the other is willing to pay and/or accept before all of the unknowns are established.  They begin to appreciate what evidence each side has established and will rely upon to prove or disprove their case.  Yes, there may be a crucial witness who will clarify the issues, but in order to be sure, they have to be found, statementized and then, perhaps, a motion based upon their testimony has to be filed, heard and granted.  There may be disputed issues of law which a Judge may declare in one or the other side's favor.  This, of course, is usually subject to challenge at a higher level and may take years to finally discern.  Finally, there is often a mere question of how much the Plaintiff will take before or after the filing of a Motion for Summary Judgment, and is it worth the expense and risk of moving forward with such a hearing?

In cases with smaller values, it is almost always at least sensible to explore this through mediation before the big expenses are incurred.  Your clients deserve no less and, as Abraham Lincoln, said:  "Discourage litigation. Persuade your neighbors to compromise whenever you can. As a peacemaker the lawyer has superior opportunity of being a good man. There will still be business enough."