Lawsuit Mediation, the Real Story

                        It is time. Your lawyer tells you that you need to go over a few things before mediation. You know, sit up straight, don’t talk too much, be respectful, then…you get it, the first tidbit of trite:

            You will be told that if mediation is successful everyone walks away a little dissatisfied. Reality is that mediation umpires the legal system from justice to disappointment and is a system in which no one running the show is completely accountable.

            Judges have been replaced by glib mediators that court, patronize, threaten, coerce, blame, shame, and finally sell you that 1960 Edsel, driven only to church on Sunday by a 60-year-old spinster.

            The process is more about performance than substance just to give you a false sense of control and power. You will be told that you’ll feel better once your hurt feelings are heard by the other side, and that being heard is most important, not the money.  

            Hogwash, it is most important to the other party not to pay.  If they could have made the lawsuit go away without a mountain of legal fees, sorry would have been on the table before you walked in the door.

            The probability is high that before you enter that room there is a pre-ordained settlement amount that everyone except you is cognizant, and you are stage-managed into a false sense of decision-making. They will pacify your desire for a day in court by serenading you with those overplayed lyrics that everyone knows–that you just want to be heard–it will make you feel better–give you closure, when in fact, closure is just a zipper, a button, a piece of Velcro that picks up every piece of lint in the wash.

     Clients will never learn what actually crosses the table in mediation as secrecy is unlike that in an open courtroom. Hushed negotiations snigger behind closed doors, and when your representative says, I’ll be right back, it is not to meet an impartial judge in chambers. Approach the bench has been replaced with Can I see you outside.

     In the second all probability, your Confidential Position Paper has not been seen only by the mediator, they all know what you know. I’ll show you mine if you show me yours has already been played and the first alleluia and soft-shoe you will be told is
“Do not to be upset over the very small first offer, you hold all the cards.”
     Then…you will be asked just to meet them part way, and tell you that they will come up on their offer.
     No, they will not and you have just fallen into the well with no bucket to pull you out.

     They will tire you out. The mediator is perfectly willing to drag out the completely executed script all day long to run up that several thousand-dollar tab, although everyone (except you) knows beforehand the outcome.
     You may be told that all the judges are seriously ill and it would be years before you will even see a court date. You will be told they will appeal and courts are so backed up it will be years before you will even see a court date.

     Be prepared. Use the internet. Use the Library. Talk to those who have gone before you. Do your research.   

     You may be told that juries hate clients and love sophisticated handsome articulate educated “other parties.” Make a note beforehand of all the news stories about how juries rule for the handsome articulate educated “other parties” and hate poor people who have been injured, because the constitution does not include the poor person.

     You may be told a story about a client, against his lawyer’s advice, who went to court and got nothing, over and over and over.

     You may be told your judge does not like your lawsuit and will not adequately advise the jury. You may be told, juries are a crapshoot and if they, or just one juror, does not like you, you get nothing.
     It is a frightening truth that lawyers view jurors as unqualified, and seemingly only lawyers are qualified to “judge,” when in truth, most juries take their roles solemnly, honestly, and conscientiously.
     You may be told the other party will appeal and it will be years before settlement. Seriously, consider if that company or “other party” will not mind paying lawyer fees and expenses for infinite years and do not have a duty to try to settle.
     You may be told to take their offer because you are a poor undeserving redneck that should be grateful for what they are offering, and you are not as intelligent and sophisticated and deserving as …somewhere else.

     For sure, and you just get enough to buy a used a FEMA trailer left over from the floods of Katrina.

 ©       Janet Goodrich

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