In mediation, the participants often spend much time trying to get each other to be the first to make a settlement offer. It is understandable that neither wants to be the first because they would both like to see how reasonable or unreasonable the other side is going to be. Then they can respond in kind. Fortunately for the mediator, the parties frequently have had settlement discussions before coming to mediation, and those discussions can help frame the initial offers in mediation. However, if that has not happened, it can be difficult convincing one of the parties to make the first move.
Likewise, it can be difficult to get the parties to agree to enter into mediation at all. Many people, especially attorneys, see an adversary’s request for mediation as a sign of weakness. If they were prepared for trial and convinced they would win, why would they want to talk about settlement? Where I practice law and have litigated the most cases (Milwaukee County), the standard civil pretrial order requires mediation. It allows the parties to select any mediator they want, but if they cannot agree on one, the court names someone by default. In any event, neither party has to request mediation and appear to be unprepared for trial or less than certain of victory.
Unfortunately, this is not the practice in all counties in Wisconsin. Recently, I attended a “view from the bench” seminar in which trial judges gave tips to trial lawyers. One of the judges said he never ordered mediation unless one of the parties requested it. I believe the judge is missing an opportunity to be of service to the attorneys and their clients. The Judge can avoid the parties’ fear of appearing weak and give the attorneys cover by saying “the Judge made me do it.” The opportunity to settle well in advance of trial also avoids the spectre of one of the parties folding on the courthouse steps immediately before trial, thereby giving away the store or leaving money on the table, and wasting scarce court time.
So, instead of asking the attorneys if they want mediation, a judge’s default pretrial order should require mediation. The Judge should strike the order for mediation only if he finds some reason not to order it. For example, if the case is one of first impression or if a precedent needs to be set regarding a new statute or constitutional provision, it may not be appropriate for mediation. If the attorneys have tried and settled many similar cases against each other, they may be familiar enough with each other and the process so they do not need a mediator to help guide them through it. Otherwise, the Judge would be doing a favor for the parties, their attorneys and the court system by ordering mediation.