LESSONS FROM A MEDIATION
I recently went to a mediation on a case where I thought there was very little chance of the case settling. The insurance company’s offer was way too low for the damages. My client’s expectations were high for the evidence we had gathered so far. Although it is a given that it is difficult to determine the value of a case, and my opinion is not necessarily better than anyone else’s, I was not expecting a resolution without litigation because each side seemed fairly entrenched in its position.
Before a lawsuit was even filed, the prospect of mediation was presented. I recommended to my client that we give it a shot, and off we went.
I felt that, even if we were not able to get the case settled, we would learn a lot from the process. We would bring in a third party neutral who would, through artful suggestions, tell us where we can improve our case moving forward. We can hear what the other side thinks of our case, and where they actually see the value. We can let the other side know we mean business, and even at the early stage of the case, that we know what we have.
Finally, my client and I could see how both he and the case might hold up in litigation. Being a plaintiff in litigation comes with certain expectations. Some are procedural, and imposed by law or court rule; some are matters of decorum and social norms; and others are necessary for our firm to be able to effectively represent our clients. Different people hold up better or worse under these expectations. Some are easier to meet for one person than another.
Ultimately, any opportunity to receive real insight and input on a case is valuable. It can teach us about our case, the defense, and ourselves. No one factor is more important than another, but they all serve to advance the cause of the civil justice system, which is to provide a platform to resolve a dispute.
We went in with our positions staked out, learned a lot throughout the day about many aspects of the case. And due to some surprising developments and the skill of an excellent mediator, we were able to get the case settled. So, it was a success. But even if we hadn’t settled the case, we could have found our successes elsewhere. The lesson, as always, is that mediation can be a valuable tool in a case, no matter the outcome.
About the Author
William K. Thayer
Bill Thayer is one of the founding partners of the Schauermann Thayer Jacobs Staples & Edwards law firm. Bill is licensed in both Oregon and Washington, and actively practiced law from 1980 to 2021. He is now "of counsel" with Schauermann Thayer and serves as an arbitrator when appointed by the courts or litigants. During his more than 40 years of active law practice, Bill advised and represented clients in personal injury and wrongful death claims and litigation, including automobile collision, motorcycle, bicycle, and pedestrian injury and death cases, dog bite cases, construction site injury claims, and a myriad of other types of injury and death claims. While many claims were settled through negotiation or mediation, Mr. Thayer litigated, arbitrated and/or tried to verdict many cases for his clients. He continues to occasionally be appointed by courts and other lawyers to serve as an arbitrator of tort claims. Bill enjoys writing as one of his varied recreational interests when he is not working.