Many people think they want their “day in court” to settle disputes. Once they get there, they may discover that it’s not really what they wanted after all. Trials are often time-consuming and expensive, and the outcomes may not always be what the parties anticipated.
There is an alternative to trials: mediation.
The use of mediation is growing. In the Houston area and throughout the state, the majority of Texas State Court judges order most cases to mediation before trial.
Smart Business talked with Ron Bankston, a partner at Godwin Pappas Langley Ronquillo LLP, about the benefits of mediation and how it can reduce the comparatively higher cost of litigation.
Why should people consider mediation?
Mediation leaves control over a dispute — and the terms of any settlement — in the hands of the parties themselves. The mediator simply helps the parties come up with a solution that, while not always ideal and not an absolute win for either side, is acceptable to everyone. The mediator’s primary role is to act as an agent of reality, someone who points out privately to both sides what their risks are and how much it is likely to cost for that day in court.
Are some cases more amenable to mediation than others?
Mediation is based more on the interests of the participants and the timing of the case than on the type of case or the area of law involved. In the end, most cases are going to settle before a jury verdict, anyway.
Probably five percent or less of all civil cases are actually decided by a trial, whether mediated or not. Of the cases that do go to mediation, a high percentage — probably 80 percent — settle either at mediation or shortly after.
A settlement on the courthouse steps may be the ‘worst of all worlds’ in which the parties have spent the money to prepare for trial, but end up settling on terms that are no better than a mediated agreement.
What should litigants consider before deciding on mediation?
First, the parties have to understand their side of the case — accurate information; goals, strengths and weaknesses; and estimated litigation costs. Once they do, they should communicate with the other side to see if they are legitimately interested in resolving the case. Without a legitimate interest in resolution on both sides, mediation stands a poor chance of being effective.
Does seeking mediation signal weakness on a client’s part?
Offering to mediate is not a sign of weakness; it is a sign of being realistic. Every case involves some weakness, risk and cost, and litigation may not produce the desired results. Mediation balances the cost and risk. Delaying that process may accomplish nothing more than driving up the costs for all concerned.
Is it less expensive to go through mediation rather than a trial?
It is, from both a monetary and quality-of-life standpoint. Mediation typically lasts a day or two, whereas the discovery and pre-trial stage of litigation often lasts months or years. A trial may drag on for weeks or months. That translates into legal fees and costs for court reporter charges, expert witness fees, preparation of exhibits and graphics, etc.
But not all the costs can be measured in dollars. The time that a company’s personnel spend during the litigation process, which takes them away from their normal responsibilities, is costly. There are intangible costs involved in trials as well, such as the stress involved and the time litigants spend thinking and worrying about the dispute, which exacts a mental and emotional toll.
Even if the parties choose mediation, they will still incur some legal expenses, and they will pay a fee to the mediator (typically a flat fee per party for a day of mediation). Comparatively, mediation is significantly less expensive. But perhaps more importantly, mediation also reduces the quality-of-life costs.
What should litigants look for when retaining lawyers for mediation?
Some of the questions to be asked address lawyers’ philosophies about mediation; when they think mediation is appropriate; how much success they and their clients have had in past mediations; and whether they have received specialized training in it. Obviously, the lawyer needs to have experience and expertise in the relevant area of law, but litigants considering mediation can use this information as criteria for selecting from among otherwise qualified attorneys to find the one best suited for their case.
RONALD G. BANKSTON is a partner with Godwin Pappas Langley Ronquillo LLP in the Houston office. Reach him at (713) 425-7419 or [email protected]
