If your case doesn’t settle, does it mean your mediation was a failure?
The short answer is no. There are many benefits to mediating your case, even if the case doesn’t settle at mediation.
At mediation, the client has an opportunity to hear directly from an independent neutral with experience in the area, many of whom are former judges who presided over similar cases, or practitioners with many years of experience in the field. The client gets to hear that neutral’s assessment of the strengths and weaknesses of their case, and their assessment of the value of the case.
While the client may not accept this assessment during the mediation itself, once they’ve had some time to process what the mediator said, the client may be more realistic in what they are willing to accept to settle, and may even be amenable to further mediation sessions.
Hearing the plaintiff describe how their injury has affected their ability to work or their activities of daily living gives the defendant or their insurance carrier an idea how the plaintiff will present on the stand and may provide a broader picture of the injury.
At the mediation, each side also has an opportunity to hear what their adversary thinks their strongest arguments are, and what evidence they have to support those arguments. You will get information about whether your adversary is serious about settlement negotiations, or whether further efforts should be concentrated solely on preparing for trial.
If no settlement can be reached, even after the mediation, the information gained from the mediation can be extremely useful in developing a strategy for trial.
A mediation can also help narrow down the issues at trial. Often, claims or defenses are made early on in the litigation that the discovery and the evidence established during the discovery process does not support. The mediator can help the parties come to an agreement about which claims will be eliminated, and which claims will be presented at trial.
Next time a mediation is proposed on your case, consider the possible benefits, even if you don’t think the case can settle. And if you want to learn more about how to get the most out of your mediations, check out the links below.
How to Prepare Your Client for Mediation
Preparing For and Appearing at a Mediation Hearing
Is Your Case Right for Mediation or Arbitration?