Mediation: A Chance to Influence Outcome
The most important day of any litigation or any court case is mediation day. It’s the most important day because it’s your last chance as a party (whether you’re a plaintiff, a defendant, or even a witness) to put your case in your hands, and not outside your control. You can put all your cards on the table. All of the information is out there. Everything that’s in mediation is confidential, and can’t be used in court against you. It can’t be used as a negotiating tactic against you. The facts you put out in mediation are all kept within that mediation. It’s a cliche to say: “what happens in mediation, stays in mediation”.
It’s also your last chance to be in control of your destiny. Once you go to court, you start putting evidence out there. A judge or a jury is going to decide your fate. Whatever they say goes, and you have to abide by their ruling. If you don’t like the verdict of a judge or a jury in a case, you’re pretty much stuck with it. In mediation, you’re not forced to take any action.
The other parties in mediation:
The mediator, the arbitrator, or the neutral party, are there to try to facilitate both parties achieve a successful outcome. In court, the judge or the jury is not there to help a successful outcome. They’re there to divide and conquer. Their role is to dispose of the case and that’s a lot of times the word they use, “dispose of”. That you’re disposable like your garbage. Both parties are, get them out of here. Get them out of court, and that’s the reason why mediation is actually encouraged.
Court: Surrendering to Judicial Decisions
Sometimes mediation is required by the court because they don’t want the case in their courtroom to begin with. They want it to be disposed of before it goes to court. Mediation day is a crucial day for you because after that you’re on a roller coaster ride. Everything outside of your control; the hearing dates, the depositions, the trial, what evidence you have to give, and what questions you’re asked are all outside of your control.
At mediation you have a friend, you have a valuable resource in that neutral mediator or arbitrator. In most cases, the solution is actually closer than you think. The needs of both parties usually overlap. A lot more than you might realize. You may be either blinded by the defensiveness of your case or sometimes you don’t have all the facts of the other party. They may not put them all on the table because they’re afraid you’re going to use it against them. The mediator is there to find that overlap and maybe resolve the last couple of things.
Mediation’s Role in Facilitating Resolution
Once you go to court the overlap actually gets farther apart. The whole point of the court is to take sides, dig in heels, dig trenches, and so a lot of times that overlap gets farther apart once you get into court. Use that mediation as an important day. Don’t just look at it as a box you have to check off, something you have to do. Before you go to court look at it as your last off-ramp before you have to go over the bridge. When you go to court you’re actually going towards danger. Mediation is your off-ramp before you have to take that dangerous step. In some cases have to go to litigation, it has to be decided by a judge or jury. A large percentage of cases, 60-70 percent have a very successful outcome.
In mediation, and you know that old saying in court. The judge or the jury is usually feeling like they did a good job. If both parties are unhappy with the verdict, nobody’s happy with the verdict. Look at the interviews you see in court cases on TV. When it’s a high-profile case, they interview both parties. Neither one of them is happy with the verdict. Usually in mediation, the idea is for both parties to walk away satisfied with the result. In fact, even more satisfied because they avoided something they didn’t even know existed.
More legal fees, more danger, more exposure from having to go into the court system. So use that date as a very important date. It’s crucial for you, to make it kind of like the most important day of the year. More important than your birthday, your anniversary, Christmas, or New Year’s, because it can have big positive effects on your outcome and your future.
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