Tuesday, June 26, 2012

Why your Attorney may act Differently at Mediation

Lawsuits are stressful. If you are involved in one, you already know that.  There is often a lot at stake, whether it is business profits or the best interests of children.  

If you are involved in a suit and have an attorney to represent you, you may be used to hearing your attorney defend you quite aggressively.  Your attorney has probably gone over your case with you and been honest with you about the negatives and positives of your case. Then s/he has probably gone on to a strong defense of your position verbally, in writing, and in court.

When parties go to mediation (either voluntarily or by court order), a client can be surprised to see his/her attorney acting differently.   That is because mediation is different from court hearings.  In court hearings, the two (or more) parties each aggressively present a case to a judge, trying mightily to persuade the judge of each viewpoint. Then the judge makes a decision which everyone must respect and obey, like it or not.

In mediation, the mediator is an impartial party.  S/he does not need to be persuaded of the “rightness” of your position. The mediator is there to facilitate a settlement and help the parties discover whether or not there is any common ground.  

Therefore, it is uncommon to see an attorney appear at mediation with all of the charts and exhibits that would make an appearance at trial.  There will not be a parade of witnesses.   There will not be (hopefully) a lot of raised voices, posturing and demands.  This is not the place.  This is the place for a realistic assessment of the case, honesty between client and lawyer, and the help of a trained professional to guide the parties in determining where things stand.  

While attempting mediation may be required, a settlement is not required. No one will force the parties to agree to something that they cannot agree to.  Therefore, mediation may not be successful, in which case, the lawsuit proceeds. 

If you are a party to mediation, it is helpful to really understand the process and go into it with the proper mindset.  Then it will not be a waste of time, even if a settlement is not reached.

Kalish Law Office 281-363-3700 Serving Texas families and businesses since 1984.

“Passionate, Professional and Personal. Since 1984.”  The Woodlands, Texas

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