Getting the most from mediation

Knowing whether and how to use a Mediator

BY BRADLEY ANDERSON Schwabe, Williamson & Wyatt

The days of settling disputes between builders, clients and investors with a handshake in Clark County may be over, but there are still ways of negotiating settlements without paying thousands of dollars in legal costs and taking one's chances with judge or jury.

President John F. Kennedy's advice for diplomacy, "Let us never negotiate out of fear but let us never fear to negotiate," is also good advice for those involved in a legal dispute.  While a trial is sometimes inevitable, most parties can't afford - in terms of costs, risks and time - to have a judge or jury decide their disputes.

Can mediation help?

Mediation is an effective tool to resolve disputes. But mediation can only work if you understand the process, select the right mediator, mediate at the right time and know what to expect.

Often confused with arbitrations - a situation where an arbitrator listens to evidence and renders a final decision - mediations are purely voluntary. A mediator makes no decisions and, because the process is voluntary, either side may walk away. And while mediators facilitate discussions, it is the parties that ultimately decide the outcome of the dispute.

Is mediation necessary?

Most cases don't need mediation. A good attorney - a strong advocate but capable advisor - can evaluate and negotiate a good compromise without a mediator. But in certain circumstances, where negotiations have broken down, involve high emotions, or when one or both sides have unreasonable expectations - mediation may be useful.

Effective mediations require the right mediator. Because there may be many candidates with a wide range of backgrounds and abilities, your attorney must be careful to select the most appropriate professional. Retired judges and attorneys with specialized knowledge are often effective because they can assess the merits of your case and better evaluate settlement proposals.

And, while the mediator decides nothing, they often will frankly assess your case and evaluate your settlement position.

What is the right timing for mediation?

There are no set rules on when mediation should occur. Early mediation - even before a lawsuit is filed - can save substantial legal costs and bring the parties to a quick resolution. However, until the parties can fully investigate and assess their case, mediation may fail.

While each mediator is different, most start mediation with a joint session of the parties in one room to outline the meeting's purpose and, at the option of the parties, to give opening remarks. The mediator essentially wants both sides to commit to an open mind and to earnestly work toward a resolution.

As time goes by, the mediator will use the dynamics of the session to compel settlement. This sometimes means the parties will settle on terms much different than what they had imagined.  

Mediation is often an effective tool to resolve difficult disputes. However, as Kennedy warned, "what's mine is mine and what's yours is negotiable," mediation does not guarantee a settlement.

Brad Andersen is a trial attorney in the Vancouver office of Schwabe, Williamson & Wyatt. He can be reached at 360.905.1431 or bandersen@schwabe.com.

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