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The Value of Candor in Mediation

Lawyers are trained for battle. Law school taught us that the way to the “truth” was an adversarial system that accepted no prisoners.

Cross-examination was the way to the truth and I’ll admit there’s nothing more satisfying than a cross-examination which completely decimates the opposing party. No prisoners.

Think of Tom Cruise cross-examining Jack Nicholson.

“You can’t handle the truth.”

If that was my cross, I’d retire on the spot. Nothing I could do in the future could equal it since Jack totally confessed his guilt.  Poor Jack was sent to prison after that cross. That’s one to tell the grandchildren. (I always wanted to send someone to prison after a blistering cross-examination).

Mediation, though, requires us to shift gears if we hope to be successful.

Too often, lawyers trained in the art of verbal battle, won’t let their guard down with the mediator to expose the soft underbelly of their case.

Intellectually, lawyers understand that what they tell the mediator is confidential. Emotionally, they’re not usually ready to be completely candid with the mediator. Or, their clients don’t want them to reveal their true settlement authority.

I’m speaking now as both a federal court mediator and a lawyer who represents parties in mediation.

I understand when you can’t be completely candid. But, if you want a good result, being candid with the mediator typically helps get to the number you think your case is worth.

If you have problems with your client, I can help with that. You have a weakness in your case? I’m not going to reveal it. If your client needs validation of her claims, that’s the purpose of mediation.  Don’t want to put it in writing? Give me a call and let’s talk about a roadmap of how you can help me settle your claim.

Don’t underestimate the value of having a third party verify to your client that you actually know what you are doing.

One of the issues I see that frustrates settlements is that the client won’t accept their own attorney’s recommendation.

Too often, the client has never had the chance to tell her side of the story. Lawyers resolve conflicts but we’re rarely trained to deal with the psychological needs of our clients. A good mediator can help you with that.

This may be “fake news,” but I’ve seen reports that in two-thirds of cases that have not settled in mediation, parties recovered less at trial. In other words, play the percentages and you will do better mediating your case than trying it.

Let’s face it. Experienced lawyers have a good sense of the value of their cases. Courts too often don’t facilitate settlements. It often needs a nudge from a mediator. I can help you with that.

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