Mediation: benefits and pitfalls

Without the standard rules and protocol of the courtroom, mediation provides lawyers a great deal of flexibility in handling a case. However, the lack of a step-by-step process requires lawyers to individualize their approach on a case-by-case basis, making mediation particularly challenging.

Still, fundamental principles hold true whether in the courtroom or at the mediation table: preparation is tantamount and the right temperament is critical.

These items were among those discussed during “Mediation’s Seven Deadly Sins – Avoiding the Seven Sure-Fire Ways to Torpedo Your Mediation, Upset Your Client and Enrich the Other Side” during the 2008 Annual Meeting in New York.

Panelists included Joel Davidson of Orangeburg, N.Y.; Deborah Masucci of New York; and Rebecca Ruppert McMahon of Cleveland. Roger Deitz of New York served as moderator.

Davidson said he appreciates the flexibility that mediation offers. He sees the mediation process as a chance to get his point across in a specific way. He said he likes to “show the person on the other side that I know the issue well.”

Mediation offers other opportunities as well. If the case goes to trial, mediation provides the opportunity to examine how clients handle themselves. If a client does not come across rationally during mediation, I know that in advance of a trial, Davidson said.

A mediation meeting may also provide an opportunity for clients to either apologize for a wrong or acknowledge a misunderstanding. This simple communication may be enough to move a case toward settlement.

“Mediation’s Seven Deadly Sins – Avoiding the Seven Sure-Fire Ways to Torpedo Your Mediation, Upset Your Client and Enrich the Other Side” was sponsored by the Section of Dispute Resolution.

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