Should Your Mediator Have Experience with Cases Like Yours?
Every case is different. Even the same types of cases involving the same defendant are a little different. There is always some nuance, some twist. And more importantly, everyone’s risk tolerance is different. When it comes to settling a case, whether with or without the assistance of a mediator, what a case will settle for will be different for even the most similar cases. If these differences didn’t exist, who would need a mediator? Instead, we’d have a “settlement app.” But just because every case is different does not mean that a mediator with some experience in the type of case at hand is not invaluable.
Though most would benefit more from a good mediator with little subject matter experience than a mediocre mediator with subject matter experience, all would agree that a good mediator with subject-matter experience is best. While the answers may seem obvious, it’s worth discussing some of the reasons in order to truly appreciate and benefit from that shared or similar experience.
A good mediator wears many hats – one is his role as a sounding board for your legal theories, arguments, and factual disputes.
A lawyer and his or her client who are on the same page can together whoop themselves into quite a froth about their case, coming away from meetings enamored with themselves and empowered to take their case to the mat. That’s great but may not be in the best interest of the client. After all, positive outcomes cannot be assured. It helps to have a disinterested, unbiased, neutral third party hear the facts, understand the applicable law, and give an informed opinion on likely outcomes. A mediator with experience with cases like yours will necessarily provide a more informed opinion than someone unfamiliar. Yes, you can get an inexperienced mediator up to speed, but that takes time. And that time is better spent negotiating.
Another role that a mediator plays is to help brainstorm.
Successful negotiators are creative. Even the most cut and dry cases have some opportunity for nuance and creativity, looking for something close to a win-win for both sides, even if it is on a sub-issue (release language, confidentiality, the timing of payment, types of payments, the structure of the settlement, etc.). A mediator experienced with your type of case will be better suited to generate real, viable options.
A case like yours involves more than the type of claims or the type of defendant. Perhaps it also involves a particular lawyer. Don’t be afraid to use a mediator that knows one or more of the lawyers involved. That knowledge could prove very helpful to you in evaluating the case and settlement offers.