The Closer

A Mediation Newsletter December 2012

Mediation's Lack of Appeal
by James Rainwater

Something mediation offers that is unique to most of the legal field is finality. Once an agreement is reached, drafted, and signed, the pressing matter is concluded. Let me preface this article by stating that with very few exceptions the Mediated Settlement Agreement (MSA) stands on its own and is not subject to revocation, set-aside, or appeal. The finality of the MSA is the brilliance of mediation.

This idea of finality can be a very strong bargaining chip for any attorney who tries to convince a client to consider taking an offer. By not settling at mediation and proceeding to trial, a different legal mechanism takes charge: Some unrelated party decides the matter - either by jury or by judge. Verdicts can be appealed. Appeals can take months or years to conclude.

Granted, few parties have the patience to prolong a dispute into the appellate area. However, it is likely to be the very intransigent parties who seek "justice" at any cost. These, indeed, are the difficult clients at mediation. And they are the ones likely to need the most convincing that with mediation, they have control over the outcome of the case and not some unknown court.

By the time you reach mediation, you probably have a fairly good understanding of your client's personality, concerns, and limits. If you have reason to believe your client will be unyielding at mediation, you should conduct a pre-conference discussion regarding the benefits of mediation - particularly its conclusiveness and the preclusion of any kind of appeal. Strong-willed clients may want to do "whatever is necessary" to prevail or have their story told; they also have the reality of these additional protracted costs: Financial expense, time commitment, and personal exertion.

To quote noted British biologist and author, Richard Dawkins: "When two opposite points of view are expressed with equal intensity, the truth does not necessarily lie exactly halfway between them. It is possible for one side to be simply wrong." With that passage in mind, we and the clients can never accurately predict the outcome of a trial or hearing, no matter how zealous a party's commitment. Having the ability to personally end something can be a very powerful enticement to offer your client.

Rainwater Law