I recently attended a mediation. During the "joint session" (something of a rarity in Seattle) the mediator told my client that this was her "day in court."
I thought to myself that the mediator was a fool. Mediation is not designed to resolve disputed issues of fact or law. That’s why we have trials. Successful mediations focus on how much the defendants will pay for a release of the plaintiff’s claims.
Mediation is an opportunity to conduct a transaction. It’s really no different than selling a car. On both sides there is a certain perceived case value. It’s based on the likely range of value at trial. If the values the plaintiff and defendant ascribe to the case overlap the case will settle. If they don’t, the case won’t.
Mediation and trial share no common characteristics. They are as different as ice cream and garden hoses. Until parties and mediators start recognizing these differences, mediations will not fulfill their full potential and a lot of time will be wasted.
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