Meditating on Mediating: Why Settle for Less?

by Wilson Elser

A member of a “miscellaneous” profession – one that doesn’t require a professional license, as do doctors, lawyers, and many others – can find an “errors & omissions claim” as disorienting as a long fall down Alice’s rabbit hole.

Unlike a simple slip-and-fall claim, with its familiar landscape of bodily injury, medical bills, and such, the first-time E&O defendant is faced with vaguely defined standards of care and odd words such as “fiduciary,” which means, “Exactly what I say it means,” to quote the Red Queen.

And the oddest character in this version of Wonderland may be the Mad Hatter, or in legalese, “the Mediator,” a stranger who, having no formal authority, dresses pretentiously and orders others about, occasionally stuffing people into teapots. (I exaggerate slightly.)

In the interest of full disclosure, I am a California-certificated mediator, though not a practicing one. I took the 40-hour training so I could better explain mediation to clients. Mediation is to a jury trial what a jury trial is to trial by mortal combat: a somewhat more genteel way to resolve a dispute.

In olden days such as the 1980s, many E&O cases were settled through direct negotiation between counsel. Some cases still settle that way, but there are at least three reasons to mediate an E&O case, two of them good ones:

  1.  Lawyers weaned on LA Law and Boston Legal, among other “satires,” know that plaintiffs’ lawyers and defense counsel are entirely different species, unable to communicate with each other except through screaming invectives, while preening for the cameras. Without a mediator to act as a translator, how could these natural enemies communicate?
  2. Mediators are skilled at identifying the parties’ true interests, as distinct from their positions, and finding ways to reach agreements that all sides can stomach, perhaps grudgingly, without the huge expense and diversion of productive time that jury trials often entail.
  3. Many states’ laws protect communications made during mediations from ever being disclosed outside the mediation process.

If you’ve guessed that the second and third reasons are the good ones, you’re a very perceptive individual. Maybe you should consider becoming a mediator.

What do the participants bring to the mediation table? The parties bring their legal dispute and, most importantly, all the facts, conjecture, distrust, emotion, and righteous (or not) indignation that come with it. The mediator brings his/her skills, of course, but also, and most importantly, his/her neutrality. Neutrality does not mean having no opinions, it means having no biases.

And what do attorneys bring to the table? Our advocacy and knowledge of the law, of course, and most importantly – and this may surprise you – our integrity. The moment we lose our integrity, the process is doomed, as are our reputations with that particular mediator. You can’t burn very many of those bridges and remain an effective advocate.

In an upcoming post to Professional Liability Advocate, I’ll share my Top Five tips to make mediation in an E&O case as likely to succeed as possible. In the interim, please check out The Mediation Society’s website for information and resources.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Wilson Elser | Attorney Advertising

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