Mediation vs. Trial: Choosing the Best Path for Your Clients
By Eric Gillett
Many years ago, a superior court judge told us as we sat in her courtroom, ready to begin trial: You are all here because you failed your clients. Her statement struck home and caused me to wonder whether there is any good reason to go to trial. Some of the obvious reasons to avoid trial include the high cost clients pay and the high risk that clients take by allowing 12 disinterested citizens to decide important issues that might impact a client financially as well as emotionally.
Legal disputes are an inevitable part of life, and when they arise, the parties involved must decide how to resolve them. When I was a young lawyer, mediation was not a well-
organized forum outside of labor negotiations. I’ve spoken about this before, and still think about how alternative dispute resolution was most often handled by the trial court judge who was handling the trial if you failed to settle.
That is no longer the case. Now, thankfully, it is rare for a trial judge to mediate a case. Most mediations are handled by lawyers who are not on the bench, at least currently. Trial judges do not normally mediate a case they are then going to oversee at trial.
Unless you can resolve a case through motion practice or private negotiations, you will be faced with the choice between mediation or trial. Because I think it is important for lawyers to understand the risks and benefits of both directions, this article will start to explore the advantages of resolving a lawsuit through mediation versus taking the case to trial.
Mediation: A Path to Resolution
Mediation is a voluntary and confidential process where a neutral third party, the mediator, helps the disputing parties reach a mutually acceptable agreement. The mediator does not make decisions for the parties but facilitates communication and negotiation.
One of the primary benefits of mediation is confidentiality. Unlike trials, which are public, mediation sessions are private, and the details of the dispute and the settlement remain confidential. This can be particularly important for parties who wish to avoid public scrutiny or protect sensitive information. Of course, this benefit does not apply if one of the parties is a public entity. In that case, the public is entitled to know the amount and terms of a settlement.
Another significant advantage of mediation is that it allows parties to have control over the outcome. In a trial, the judge or jury makes the final decision, which may not align with either party’s interests. In mediation, the parties work together to craft a solution that meets their needs and interests. This collaborative approach often leads to more satisfactory and sustainable outcomes.
Mediation is also generally more cost-effective and time-efficient than going to trial. Trials can be lengthy and expensive, with legal fees, court costs, and other expenses adding up quickly. Mediation, on the other hand, can often be completed in a matter of days or weeks, saving both time and money.
However, mediation is not without its risks and limitations. One potential downside is that it relies on the willingness of both parties to negotiate in good faith. If one party is uncooperative or unwilling to compromise, mediation may not be successful. Additionally, because mediation is a voluntary process, there is no guarantee that an agreement will be reached.
Trial: A Different Path
So, if we accept what my trial judge said many years ago, we are here because we failed to resolve the case. Taking a case to trial has its own set of benefits and risks.
One of the main advantages of going to trial is the possibility of obtaining a favorable judgment. If a party believes they have a strong case and the evidence is on their side, a trial may result in a judgment that is more favorable than what could be achieved through mediation. Additionally, the formal legal process of a trial can provide a sense of justice and closure for the parties involved. I would never offer this as a good reason to go to trial. I am not a believer that “victory” at trial makes you feel good enough to warrant the risk of an adverse result.
Clearly, trials come with significant risks and limitations. One of the most notable risks is the uncertainty of the outcome. Even with a strong case, there is no guarantee that the judge or jury will rule in favor of your client. This uncertainty can be stressful and emotionally taxing for the parties involved.
Trials are also more expensive and time-consuming than mediation. The costs associated with preparing for and going through a trial can be substantial, and the process can take months or even years to complete. This can be a significant burden for parties who are already dealing with the stress of a legal dispute.
Comparing Mediation and Trial
When comparing mediation and trial, one of the key factors to consider is the certainty afforded by a settlement in mediation versus the risks of an uncertain trial outcome. Mediation allows parties to reach a mutually acceptable agreement, providing a level of certainty and control that is not possible in a trial. This can be particularly important for parties who want to avoid the unpredictability of a trial.
Cost and time are also important considerations. Mediation is generally more cost-effective and quicker than going to trial. This can be a significant advantage for parties who want to resolve their dispute efficiently and with minimal expense.
The emotional impact of the two processes is another important factor. Mediation is typically less adversarial and confrontational than a trial, which can reduce the emotional toll on the parties involved. The collaborative nature of mediation can also help preserve relationships and foster a more positive resolution.
The Concept of BATNA
The “best alternative to a negotiated agreement” is a concept that plays a crucial role in both mediation and trial. BATNA refers to the best outcome a party can achieve if negotiations fail and no agreement is reached. Understanding one’s BATNA is essential for making informed decisions during the negotiation process.
In mediation, knowing one’s BATNA can help a party determine whether a proposed settlement is acceptable or if they should continue negotiating. If a party’s BATNA is better than the proposed settlement, they may choose to walk away from the negotiation. Conversely, if the proposed settlement is better than their BATNA, they may decide to accept the agreement.
In the context of a trial, understanding one’s BATNA is equally important. If a party believes that their chances of winning at trial are high and the potential judgment is better than any settlement offer, they may choose to proceed with the trial. However, if the risks and costs of going to trial outweigh the potential benefits, a party may decide to settle the case instead.
Final Considerations
Both mediation and trial have their own set of benefits and risks. Mediation offers confidentiality, control over the outcome, and cost-effectiveness, making it an attractive option for many parties. However, it relies on the willingness of both parties to negotiate in good faith. Trials, on the other hand, provide the possibility of a favorable judgment and a formal legal process, but come with significant risks, costs, and uncertainty.
When deciding between mediation and trial, parties should consider their specific circumstances, including the nature of the dispute, the potential costs and benefits, and their BATNA. Seeking legal advice can also help parties make informed decisions and choose the best path for resolving their dispute.
Eric Gillett is a professional mediator, arbitrator, and litigator. He is also a founding member and managing partner at Preg, O’Donnell & Gillett. He is licensed to practice in Washington, Oregon, and Alaska and has tried dozens of cases to verdict and mediated hundreds more. A highly experienced commercial mediator, Eric can be reached through his legal assistant, Jasmine Reddy, at 206-287-1775 or jreddy@pregodonnell.com. Further information is available at gillettmediation.com or via email at eric@gillettmediation.com or egillett@pregodonnell.com.
