Mediation works in most cases, but not in all cases. Here are a few ways to get more from your mediation.
First, manage the expectations of what will occur at the mediation. Make sure that the mediation process has been completely explained and understood. Nothing can complicate a mediation session like a client expecting the mediator to act as a judge and make the decision in the case. Clients should discuss the mediation process with their legal counsel prior to the mediation date. Clients should also discuss the merits of their legal case with their counsel prior to the mediation. Discussion of the merits of the case includes what the likely result would be if decided by a judge, the strengths and weakness of the evidence in the case, and the potential financial aspects of the case. It is much easier to reach an agreement if each party has a realistic view of their legal case.
Second, clients should understand that mediation is not an all or nothing process. Parties can reach partial settlement agreements if settling the entire case isn’t feasible. By having a partial settlement of the case, the issues are narrowed and therefore less to present to the court. This not only saves in litigation costs and trial time but also limits what the court will be deciding. Limiting the court’s decision making allows the client to make sure that only the most contested issues are before the court and limits the potential for client disappointment with the court’s ruling.
And lastly, mediation is not the end of settlement negotiations. If an agreement is not reached at mediation, it is not the end of the opportunity to settle without court intervention. The Texas Rules of Civil Procedure give several other mechanisms for settlement outside of court. These tools allow for negotiations to continue without the potential for those settlement negotiations to be used later as evidence in court.
When clients and counsel work together to prepare for mediation and prepare for settlement the mediation process is much more successful and satisfying for everyone involved.