Attorney T. Gabe Houston authored the article, “Mediation: Benefit or Burden” published by Orange County Trial Lawyers Association’s The Gavel, discussing how mediation is sometimes misused by the defense as a protective mechanism or to obtain further discovery in a case. Mr. Houston notes that mediation is encouraged by the courts as an alternative dispute resolution tool to alleviate the burden placed on the courts, as well as eliminate the risk of an adverse judgment; however, he says his adversaries may be using it for much different purposes.
From a procedural perspective, mediation should not be avoided for fear of waiving confidentiality, nor should one worry about defending any part of mediation during subsequent hearings. In identifying which party has the most incentive, mediation has always proven successful for defense counsel due to full-rate billing while the plaintiff gains no financial benefit from an unsuccessful mediation.
On the other hand in a successful mediation, where both parties agree on the financial terms under which to settle a case, it is the parties themselves that establish the fair value of the case. Mr. Houston advises to lay the foundation by agreeing to mediate only when there is an honest assessment that the case can get resolved the same day. Establish the rules and never agree to mediate a case unless all parties and their adjusters are present. Determine the expectations with the mediator as their duty is to provide an honest and neutral assessment of a case.
Ultimately, it’s not to say that mediation isn’t a useful tool provided that all parties have the same intentions. By changing the approach and taking the “comfort zone” from the adjusters, the incentives are leveled and in turn successful.