WHAT IF MEDIATION DOES NOT RESOLVE THE CASE?

In our examination of the Pre-mediation Conference (Client Interview by lawyer) a couple of weeks ago, we noted the need for the Mediation Advocate to obligatorily find out the underlying interests of the Client; that is, the actual reasons why the Client is pursuing the case through the judicial or quasi-judicial process. We noted that it was in this story behind the legal claims, that the Mediation Advocate is able to determine how best to manage the negotiation of the dispute. However despite the procedural activity of a pre-mediation conference, some clients remain doubtful of the process and consistently desire to know from their advocates if the matters can truly be resolved through mediation. This is particularly so with new users of the process as they worry about what happens if mediation does not resolve the case.

Judicial Power

On a good day, clients are more comfortable sitting some distance away in the courtroom from an all-knowing and powerful Judge, exercising the power of State over a supposedly intransigent opponent. In their thinking, the opponent will not yield grounds unless forced to do so by the power of State. There is also reliance on the Lawyer who is, literally speaking, expected to be able to turn wrongs to right through advocacy skills. These thought trends are what gives fillip to the questionable belief that the litigation process does not fail. If litigation does not fail, we perhaps need to be educated on what appeals are all about. I have over the years come to know that everything in life has an obverse side. That whatever happens creates different results either for the person involved or to some other parties caught within the loop. That to every good thing exists a bad side and every bad situation its good side. If you are still in doubt consider the example that irrespective of the pains the death of a loved one engenders in relations, that same death throws up opportunities or joy to some others like the undertakers and persons who will be privileged to occupy the socio-economic vacancies the exit of the deceased will create. This reality bolsters my courage to give a try to whatever I consider useful, knowing that whatever failure at any point, may do good to me or to someone else. Mediation is not immune from this natural interplay. No one has ever presented mediation as foolproof. What can be said of it is that what is considered its failure may quite often throw up byproducts that become useful in the ultimate management of the dispute

Outcomes Of A Supposedly Failed Mediation

It is perhaps this belief in the obverse sides of mediation that very experienced professionals are wont to insist that mediation does not fail. This thinking is premised on superior process-knowledge that whenever a mediation is considered unsuccessful, chances are that an agreement may pop up at some short time thereafter based on new information and insights parties had gained about their dispute at the mediation session. It is also not unusual that some mediated disputes are resolved in part leaving some other contentious issues unresolved. Whenever this occurs, the logical step is to refer the unresolved issues to arbitration or litigation, depending on the preferences of the parties. It will be illogical to classify a partially resolved dispute in the mediation process as failed or an avoidable waste of time and money. Aside the fact that such outcomes will reduce the length of time parties spend in court dealing with the unresolved issues, both parties would already have gained fresh perspectives on the strengths and weaknesses of their respective cases. Examples may arise in auto accident cases where plaintiff suffers some grievous bodily injuries. Though defendant agrees his reckless driving caused the injuries on the defendant, he vehemently disagrees with the quantum of damages the plaintiff demands. This is because when people make monetary demands in lawsuits, the demanded sums are usually at variance with ascertainable costs. It is a demand rooted in emotion or made offhandedly with a punitive intent. Such demands will usually fall flat on their faces whenever proof of actuals are requested. For legal practitioners , a supposedly failed mediation process would have given counsel or mediation advocates engaged in the matter an opportunity to evaluate how convincing their clients are in proving their cases before a third party. The client who has himself observed the weaknesses of his case when juxtaposed with the evidential proof of the other party is likely to have a rethink of the entire case. Mediation is not an all-purpose vehicle. Professionals in the know are able to advise the client from the outset what best platform to resolve his dispute. However, if for the mere desire to ‘’penalize’’ his opponent the client chooses the litigation route in a matter well suited for mediation, he should not complain about the length of time or cost of the process. After all what goes around comes around.