Monday, July 2, 2012

Should you Settle your Business Case at Mediation?

If you are involved in a legal battle and have agreed to go to mediation (or have been ordered to go by the judge), it will be helpful to you to enter mediation with the right “mindset”.

Mediation is entered into with the hope (or at least possibility) of settlement of the case.   Some litigants (parties to the lawsuit), view that attitude as defeatist and feel that they are “giving in”.   Not necessarily true. 

Before you say, “No, I will not settle!” consider the case realistically.  Review in your mind the amount of time and money that you will spend if you do not settle.  Include all of the obvious and “hidden” expenses.  More attorney’s fees and court costs are obvious, but what about lost work time, stress, transportation expenses, lost work time, lost time with your customers and so on?

Of course, there are times when you shouldn’t settle.   Sometimes the opposing side is just not being reasonable and you cannot settle, even if you’d like to, because you just don’t feel that you can afford it. You have taken a realistic attitude, listened to your lawyer, and you just cannot do it.  The reason may be financial, or there may be other reasons why you believe that you must try to "win" in court (reputation of your company, your future employment prospects, effect of a voluntary settlement on third parties).

If you can, go into the mediation with the attitude “Let’s see what happens here.   The opposing party is not usually reasonable, but I am going to do my best to put aside my anger and evaluate this practically and see if settlement is good for me.  I am going to do what I think is best, whatever that may be, and then I am not going to look back.”

If your business case is going to mediation, be ready with facts, dates, figures and any other information that can help with evaluation or settlement of the case.  Before you say "no" to settlement, be sure that you have a realistic picture of what the costs of continuing litigation might be, and whether they are worth it in a practical sense.

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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