The Expert Podcast

The most important day of any litigation or any court case is mediation day. It's the most important day because it's your last chance as a party to a case, whether you're a plaintiff, a defendant, or even a witness, to put your case in the hands of the parties and not outside your control. You can put all your cards on the table, you can put all your information out there. Everything that's in mediation is confidential; it can't be used in court against you, and it can't be used as a negotiating tactic against you.

The facts you put out in mediation are all kept within that mediation. Like they say, it's a cliché: what happens in mediation stays in mediation. It's also your last chance to be in control of your destiny. Once you go to court, you start putting evidence out there, and a judge or a jury is going to decide your fate. Whatever they say goes. You have to abide by their ruling. If you don't like the verdict of a judge or a jury in a case, you're pretty much stuck with it. Right in mediation, you're not forced to take any action. In fact, the other parties in mediation, who is the mediator, the arbitrator, or whatever that neutral is, is there to try to facilitate to help both parties achieve a successful outcome. In court, the judge or the jury—they're not really there to help a successful outcome. They're there to divide and conquer. Right? Their role is to dispose of the case, and that's a lot of times the word they use—dispose of it, like you're disposable, like your garbage. Both parties are, get them out of here, get them out of court.

And that's the reason why mediation is actually encouraged, sometimes required, by the court because they don't want it in their courtroom to begin with. They want it to be disposed of before it goes to court. So that mediation day is a crucial day for you, because after that, you're on a roller coaster ride. Everything's outside of your control: the hearing dates, the depositions, the trial, what evidence you have to give, and what questions you're asked by the other attorney are all outside of your control.

At mediation, you have a friend. You have a valuable resource in that neutral mediator or arbitrator, whatever it is, who's trying to get to a solution for you and the other party. In most cases, the solution is actually closer than you think. The needs of both parties usually overlap a lot more than you might realize. You may be either blinded by the defensiveness of your case, or sometimes you don't have all the facts of the other party because they're not putting them all on the table because they're afraid you're going to use it against them. The mediator is there to find that overlap and maybe resolve the last couple of things. Once you go to court, the overlap actually gets farther apart. Right? The whole point of court is to take sides, dig in heels, dig trenches. And so a lot of times, that overlap gets farther apart once you get into the court setting.

So use that mediation as an important day. Don't just look at it as a box you have to check off or something you have to do before you go to court. Look at it as your last off-ramp before you have to go over the bridge that's out over the river. Right? When you go to court, you're actually going towards danger. Mediation is your off-ramp before you have to take that dangerous step. Look, some cases have to go to litigation. It has to be decided by a judge or jury. But a large percentage of cases—60%, 70%—have a very successful outcome in mediation. And you know that old saying in court, the judge or the jury is usually feeling like they did a good job if both parties are unhappy with the verdict.

Nobody's happy with the verdict. Look at the interviews you see in court cases on TV. When it's a high-profile case, they interview both parties. Neither one of them is happy with the verdict. Usually, in mediation, the idea is for both parties to walk away satisfied with the result. In fact, even more satisfied because they avoided something they didn't even know existed: more legal fees, more danger, more exposure from having to go into that court system. So use that date as a very important date and crucial for you. Make it kind of like the most important day of the year—more important than your birthday, your anniversary, Christmas, New Year's—because it can have very big positive effects on your outcome and your future.