Which Cases Are Right for Mediation?
I think it is fair to say that virtually every civil case is right for mediation. Mediation is merely using the services of an independent, third-party neutral to help the parties negotiate a resolution of their dispute. If the goal of a civil action is to resolve the dispute, then mediation will likely help. Of course, sometimes the goal of a case is not to resolve the dispute. Mediation is not right for those cases. But, if the goal of the case is not resolving that dispute (the one made the subject of the lawsuit) but some other dispute, then mediation can certainly help with that.
Just because most cases are right for mediation does not mean that they will settle.
Mediation may, however, help the parties determine whether a dispute is settleable, i.e. do the parties have a similar view of each other’s facts, liability, risks, opportunity, etc. If not, then the case is not likely to settle. Does that mean that they shouldn’t mediate? No. Exploring settlement while not achieving it can be very helpful to the parties and the process. They will then know that they are not going to resolve the case and that a court must. Perhaps further developments will change their perspective such that a settlement will be possible later. Maybe not. Regardless, intensive and exhaustive exploration of the parties’ interests and goals is helpful and productive, even when settlement does not occur. I frequently tell mediating parties that I measure the success of the mediation not by whether the case settles but by whether we have explored every opportunity for it. When a mediator’s goal is settlement at all costs, sometimes even subconsciously, the mediator will influence the outcome, which is a no-no for a mediator.
While most cases may be right for mediation, they may not be ripe for mediation.
Both or all parties to the dispute must be at a point where they are ready to negotiate. In other words, they must have fully developed, discovered, and identified their interests, their goals, their risks, and their lost opportunities. If there are unknowns, they must be able to evaluate the risks in their becoming known. For example, a summary judgment motion may have implications far beyond the case at hand. While a party appreciates that the cost of settling that case may go up if it is denied, it might be worth that risk if granting it will bear fruit exponentially more valuable considering the potential for similar cases to come. Likewise, incomplete discovery can often be a bar to a successful negotiation, though the willing exchange of information should alleviate that issue. But it is always a challenge to get the parties to voluntarily disclose at mediation something that will likely be discovered later in discovery.