Mediation: Not Every Case

Attorneys have too many cases; Judges even more so. Thus, every case should be mediated, right?

Absolutely not.

Despite the issues with our judicial system, some need trial. And if you want your case tried, question whether mediation is a good use of resources. So then, what cases go to a judge or jury for a decision?

The Easy Decisions

These are cases where understanding what the past means is more important than moving forward. Here, the past can’t be contained; it must be examined and defined.

New Law

Maybe your case is going to be one of the 46 non-death penalty opinions written by our Supreme Court. Or maybe your case is going to be one of the 9% of all appeals that result in a published opinion.

Ideally, you’ve identified a narrow open question that will affect a broad swath of your clients. Then you’ve found a client who has a compelling story – without the compelling story, as the saying goes, bad facts make bad law. And then that client is more interested in pushing the law forward more than their individual damages.

Here, the point isn’t what happened; it’s what it means.

When this unicorn case comes around, don’t spend the time or money on mediation. Get the trial judge’s attention, and let the court know – early and often – what open question your case is going to address. Spend your money on experienced appellate counsel to set the inevitable appeal.

Bellwether Trials

Often, mass torts, MDL, or similar cases need a few trials before resolution is possible. Liability theories need testing; damages models need data. Bellwether trials provide both.

Even in these cases, setting up a post-trial resolution program, that may include mediation, could work. Mediation can also test theories: use it like a mini-mock trial, run multiple mediations to obtain data points, or see if an offer you can’t refuse exists. But usually, a true mock trial serves you better, without giving the other side a full preview.

Some may suggest arbitration for bellwethers. My thoughts: most bellwether trials happen in courtrooms, not conference rooms – and for good reason.

When Mediation Works

Mediation is best used when there is a chance to move forward without litigating the past. If the case requires determining what the past means, either to move the law forward or to value a novel event, that’s what trial is for.

Bet the Company?

You’ll note, I didn’t discuss the proverbial “bet the company” case. The phrase has been used so much it’s lost all meaning. Does it mean a challenge to a company’s business model? An accusation against a senior executive? Salacious facts? Vindications of a client’s rights? Or just a lot of money?

Next week, we’ll look at how to evaluate these difficult cases—ones that often go to trial but may still benefit from mediation.

Until then,

Monday x Morello Mediation.

None of this is legal advice. Your mileage may vary.