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Monday
Jun192017

Twice is nice

Last week, I was on a panel of attorneys at a continuing legal education seminar dealing with mediation. The session was part of the State Bar of Wisconsin’s Annual Meeting and Conference and was interactive. Attendees were asked to participate by answering certain questions using Poll Everywhere. Then, those of us on the panel commented on the answers. Some of the attendees’ responses were expected. Some surprised me. One in particular was very surprising. We asked what attorneys were most afraid of in mediation. The most frequent answer by far was finding out information that was harmful to the attorney’s case. I don’t know what those attorneys were thinking, but I would much rather find out what is wrong with my case at mediation, when there is still time to try to fix it or cut your losses, than during trial when it is too late. 

Early in my career, an attorney who I was working for told me that he didn’t like mediation because it forced him to prepare his case twice. I understand that attorneys are pressed for time and that it can be expensive to prepare your case for trial, and then to do it again, maybe getting more evidence or witnesses, or researching additional legal issues. But after I tried several cases, I realized that I always thought there was something I could have done better had I been able to do it again. Later in my career, I had the opportunity to do mock trials in preparation for some big cases. I always learned many new things about the case and how a jury might perceive it, and usually had to retool my presentation and arguments. This always benefited my client and subsequent settlement negotiations or trial strategy. 

Mediation is supposed to be a consensual process where parties in dispute talk about possible resolutions or settlements. If you suddenly learn new information about your case that makes you rethink its settlement value, that is a good thing. It does not mean you have to throw in the towel and accept your opponent’s settlement offer then and there. You can ask for a continuance to check out the new information and see if there is any way to counteract it. Then you can return to mediation, or proceed to trial, better prepared than before. Either way, mediation will have served a valuable purpose, not one to be afraid of. 

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    Response: EssaysMama
    The attroneys are always rewising the case and find the better solution. Their job is tough and they will try to find out some law rules about the case. Every attorney has fight for their client until get the success in the case.

Reader Comments (2)

"Don't spoil the surprise" has probably never been a request of opposing counsel. I think this may explain when some lawyers only have an interest in mediating cases post discovery. Discovery is responsible for a significant portion of the total cost of litigation and gives litigators the chance to stress test their opponent.
As mediators we need to be consistent in our messaging that mediation can be effective (sometimes even more effective) in the early phases of an action. That is why some mandatory mediation programs require mediation prior to trial or before even setting a trial date.
When do the parties usually undertake mediation in Wisconsin?

Thanks for sharing this insightful experience with your readers

August 22, 2017 | Unregistered CommenterDave Wakely

You are absolutely correct, Dave! Unfortunately, Judges in Wisconsin usually order mediation only after discovery and dispositive motions have been completed.

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