Published: January 2025
Having started practicing law in Florida 35 years ago, when mediation was in its infancy, and now later in my career focusing on serving as a mediator, I recognize that a lot has changed in the world of mediation.
To be sure, the amount of research, scholarship and opinion surrounding mediation has exploded and is ever increasing. This is reflected in everything from law review articles to mediation education to U-Tube videos. The reason is undoubtedly because mediation has proven so successful as an effective dispute resolution method. We should truly commend all those involved in creating, growing and championing the now robust mediation process.
While the boom of new information and resources regarding mediation is clearly a positive development, I suggest we always remember a never-changing fundamental of the mediation process—focusing the parties on thoroughly considering and assessing their alternatives.
Status Quo—Continuing the Litigation Alternative
At some point in time, at least one of the parties believed that filing a suit was the best option (assuming it is not pre-suit mediation). As a result, the first alternative is staying the course, which is continuing the litigation. This alternative has risks that the parties probably have already partly considered, such as attorneys’ fees and costs, loss of time, and overall uncertainty.
However, often the parties have not extensively assessed all the risks in continuing the litigation. This includes both the types of risks and the magnitude of the most obvious risks. Usually, the simple scheduling of mediation starts the parties reassessing the continuing litigation risks. Even more so, the mediation session should serve to make clearer the continuing litigation risks because the parties will need to compare those risks to alternatives.
As an example, counsel often understand and appreciate the limitations of the judicial system and relief—parties not so much. Continuing the litigation requires compliance with numerous rules of procedure and time deadlines, satisfying each element of a cause of action or affirmative defense, offering expert testimony, establishing legally permissible damage models and remedies, and meeting strict evidentiary requirements for admissible evidence. Of course, the specifics of each case are unique and prove the inevitable point—the devil is in the details when evaluating continuing the litigation.
Settlement Alternative
Settlement is the alternative to continuing the litigation. It is limitless in its potential scope and variation—largely unrestrained by all the rules governing continuing the litigation. Settlement has the key advantages of bringing certainty to the parties and can be customized in ways that judicial relief is legally incapable. The flexibility that is possible through settlement is what makes mediation a creative endeavor and a potential settlement so strikingly different than continuing the litigation.
Some common examples of settlement terms that are not possible with continued litigation include payments over time, payments to or from persons not parties in the suit, terms reducing tax consequences, general releases (including pertaining to persons not named in the suit) and non-monetary provisions such as confidentiality and non-disparagement clauses. The number and type of terms that can be negotiated into a settlement agreement depends on the case and the imaginative resourcefulness of those involved in formulating the settlement.
The Opportunity for Settlement
It is when the parties understand the risks of continuing the litigation compared to the key advantages of settlement—flexibility of terms and certainty of result—that there is an opportunity for settlement. But this is only an opportunity. The actual settlement often comes through the hard work of fashioning the precise terms of settlement—many times in a creative and customized manner.
Although some parties may begrudgingly accept that settlement could be a better alternative than continuing the litigation and other parties may eagerly embrace the opportunity of self-determination through settlement, the essential assessment they must make is the same. Are the proposed settlement terms better than the risks associated with continuing litigation? In a mediation where this question is answered in the affirmative, there is settlement.
Conclusion
In emphasizing the importance of comparing alternatives, I do not suggest ignoring the human factors and dynamics that impact the mediation process—many of which create or hinder an overall environment conducive for resolution. However, a fundamental of mediation remains a thorough consideration and assessment of the parties’ alternatives (continuing litigation vs. settlement).
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Hank Jackson has practiced law for 35 years and now serves as a mediator. He is a Florida Supreme Court Certified Civil Circuit Mediator and is Board Certified in Business Litigation by the Florida Bar. He can be reached at 561-271-1878 or [email protected] or visiting http://hankjackonlegal.com. For additional ADR tips and resources, go to www.palmbeachbar.org/alternative-dispute-resolution-committee.