The Closer

A Mediation Newsletter February 2012

The Reluctant Mediatee
by James Rainwater

It is human nature to not want to be told what to do. Some of us began resisting it at an early age - say, kindergarten. Others may have discovered their resistance by the third year of law school. Unfortunately, we cannot always get what we want. In our world, when the court orders something, why not make the best of it? Embraced or not, court-ordered mediation is likely to prevail.

Most attorneys have a positive attitude toward mediation. After twenty-five years of service, Alternative Dispute Resolution is not only part of the mainstream of the legal profession; it is frequently at the forefront. Mediation is seen not only as cost-effective but also as a tool to unclog dockets jammed with increasing numbers of case filings. Yet, litigants often balk at mediation.

While mediation is commonplace in the legal community, it is still viewed as a quite foreign practice to many laypeople. To this end, attorneys need to educate their clients on the benefits of mediation. Mediators can explain the process at the start of the conference. However, it is crucial - and more productive - if the involved attorneys prepare the parties for the mediation conference by explaining as much as possible.

Armed with the knowledge of mediation's potential for success, disputants will be more attuned to the idea of resolution, rather than prolonged conflict. As clients may not like the idea of a judge mandating a settlement conference, a positive aspect can be presented and reinforced: The matter may be concluded quicker - saving time, money, and nerves.

Attorneys have tremendous impact on their clients, and it is incumbent that the client's first exposure to mediation is a positive one. Clients seek - and sometimes crave - advice and counsel. If the attorney can set a positive tone for mediation, the client is likely to follow suit. And with the attorney and client in agreement, resolution and settlement are that much more likely to occur.

Rainwater Law