Any attorney that says your case is a “slam dunk” is either a liar or is too inexperienced to trust in court. Trials—especially in front of a jury as opposed to a judge—turn on many factors that are simply outside the control of the lawyer and the client. Fortunately, there are alternatives to the roll of the litigation dice. Mediation provides a willing client with at least three benefits: (1) a neutral view of your case from someone other than your lawyer who is financially invested in it; (2) the chance to tell your side of the story in a confidential setting; and (3) the opportunity to control the amount of money you either receive or have to pay without being subject to the whims of a jury. Perhaps the greatest benefit, though, is that a successful mediation puts an end to the financial costs and emotional toll that come with a lawsuit.
First, a mediator is either selected and paid by the parties or is appointed by the court to perform the service for free. Either way, a neutral mediator has no interest in the outcome of your dispute. This allows the mediator to tell you what he or she thinks about your case—warts and all. Your attorney may have glossed over some of those blemishes, or ignored them altogether, and tried to convince you that your case is worth a lot of money or that you don’t have any exposure to pay a large judgment. The mediator provides a neutral perspective of both the strengths and weaknesses of your case. Even if you don’t settle, that insight helps both you and your attorney prepare your case for trial.
Second, a mediation is a confidential proceeding; nothing said there can be used for or against you at trial. This gives you, as a client, the chance to say what you want without fear that it will be read back to you on the witness stand at trial. It also allows you to tell what happened without being muzzled by your attorney. Sometimes all a client wants is to tell someone their version of the story without it being filtered through the rules of evidence or the litigation tactics of counsel. A mediation provides that setting for you to say your peace.
Third, remember the plaintiff’s attorney John Travolta played in the film A Civil Action? When the jury went out to deliberate, the defense attorney, played by Robert Duvall, offered $20 million to settle the case. Travolta’s character refused. The jury came back and rendered a verdict against his clients giving them nothing. An analysis of the lawyer’s hubris in rejecting such an offer is beyond this scope of this blog. However, I raise the movie to point out that you don’t want to be so enamored with your case and think it is so valuable that you turn down a reasonable offer only to go to trial and walk away with nothing. Mediation allows the parties to put a value on how much each side is willing to accept or to pay to resolve the dispute instead of continuing with the litigation fight.
Some people think of mediation as a touchy-feely-let’s-all-sit-around-the-campfire-holding-hands-and-sing-Kumbaya kind of experience. Not so. It’s actually a chance for you to get a neutral observer’s take on your case, it allows you to vent without being “on the record” for the things you say, and it lets you decide how much your case is worth. Most importantly, though, a successful mediation stops the litigation and lets you move on to bigger and better things in life.
 A Civil Action (Touchstone Pictures 1998).