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Lawsuit Mediation: Trying To Compromise Before Starting a Lawsuit

Lawsuit mediation is a pretrial method to get parties to agree to a mutually acceptable dispute resolution. It involves direct negotiation or assisted mediation and is a form of alternative dispute resolution (ADR). Before you even get to this stage, it's often helpful and effective to seek compromise directly from the other party.

Lawsuits are integral to our legal system, but they're also a messy business. Lawsuits take time out of your life and money from your wallet. They also add stress to lives already riddled with anxiety.

When the person with whom you're having a dispute is a friend, neighbor, relative, or anyone with whom you have regular contact, lawsuit mediation offers ways to resolve conflicts in an amicable way. Mediation is often ordered by the court during the preliminary stages of a lawsuit. One method of avoiding the cost of filing a lawsuit in the first place is to enlist the help of a mediator before filing your case.

This article will discuss both direct negotiation and assisted mediation, emphasizing the process of direct mediation. The article addresses negotiation techniques and different remedies, too.

Lawsuit Mediation: What Is Direct Negotiation?

Direction negotiation, or direct mediation, involves face-to-face negotiation of a dispute. A direct offer to compromise can be very effective, particularly if your dispute is with someone with whom you wish to maintain good relations. Perhaps that person won't admit to complete fault but is willing to consider options that will satisfy you.

Talk to the other party with the knowledge that any offers to compromise don't affect your ability to sue for a greater amount later. For example, if you believe your dentist did a subpar job filling a cavity, you can offer to settle with the dentist for a refund of half the cost. If the dentist refuses your offer, you can still sue for the full amount you paid. You won't be limited by your proposal to settle for half.

Negotiation Techniques

Before negotiating with the opposing party, it's essential to consider several factors. You'll want to have a clear idea of what your goals are before beginning to talk about compromising. Factors you'll want to think about include:

  • The odds of winning a lawsuit: This factors into determining a settlement amount.
  • Your bottom line: This helps you clarify what you're willing to accept, even if it's not your ideal.
  • Different types of remedies: If money isn't the only remedy that would satisfy you, think about other things you can offer that might satisfy both you and the other party.
  • How much time you're willing to spend negotiating before pursuing other options: This could be a simple calculation of how much the time will cost you in money and energy.

The factors above will be the most relevant for the majority of disputes. Many people focus on the bottom line, but doing so can be counterproductive. You may close yourself off from other available remedies by focusing on a number. Instead, think of the bottom line as a backstop for yourself rather than being at the front of your mind.

Be objective in your reasoning when considering the odds of winning a lawsuit. Don't let anger or frustration cloud your judgment. Instead, consider the strengths and weaknesses of your case. Not all judges or juries will share your assessment. 

Keep in mind that about one-third of small claims cases result in a full judgment for the plaintiff, and about one-fourth of them result in zero damages awarded to the plaintiff. That should give plaintiffs pause to consider compromise as an alternative to an expensive and acrimonious lawsuit.

Consider Different Remedies

You can get creative in coming up with remedies during direct negotiation. If you believe you've got a strong case, you might feel comfortable asking for more compensation than if you had a weaker case, but how much is money worth to you in this dispute? If your dispute is with someone with whom you wish to keep good relations, the amount you receive may be a less significant consideration.

For example, suppose your unemployed brother-in-law borrows your car and returns it with a dent in the door, apologizing while admitting that he dinged a light pole. You could make him pay for the damages in full and even get a judgment against him if you took the matter to small claims court, but perhaps family relations are worth more than making your brother-in-law pay for something he can't afford. 

In that case, you might instead agree to a barter situation, where your brother-in-law agrees to pay for half the damages and paints your living room for free.

Lawsuit Mediation: What Is Assisted Mediation?

Assisted mediation is another type of lawsuit mediation in which a third party acts as a neutral to help the parties come to a mutually agreeable resolution. The impartial third party is often trained as a neutral mediator or is an attorney accustomed to performing the role. 

In the process of mediation, the mediator often acts as a referee. They set ground rules for how the parties will communicate. The focus is to let each party provide their proposal and then work toward resolution. The mediator often can address frequently asked questions (FAQ) at the outset. This can give each party some peace of mind as well.

One of the benefits of mediation that's assisted is that it may avert the cost of a lawsuit. Another is that the parties themselves are the decision-makers. However, a downside is that mediators aren't free, although there are legal services that offer mediation services at a low cost. If an agreement can't be reached, a court case will follow. If you choose to attempt mediation before filing a lawsuit, a court may not require you to participate in court-ordered mediation before you go to trial.

Get Your Agreement in Writing if Possible

No matter how your dispute is resolved, getting your agreement in writing is always a good idea. Any assisted mediation will do this as a matter of policy. Your agreement doesn't need to be formalized with a notary and witnesses. Instead, you might download a form from the internet to use as a template. 

Your written agreement should contain all terms, including any deadlines, for each party to complete. Terms should be clear and easy to understand. Both parties must review and sign it. Each should have a copy to keep for their records.

When unrepresented parties write out and sign their settlement agreement it may have limited legal weight, but that process gives the parties a chance to look at each party's obligations under the agreement. That can lend the process greater weight than it might otherwise have. Oral promises in these situations are almost worthless. Signing your name to a written agreement is considered a serious act and will give the agreement more credibility.

Get Legal Advice From a Lawyer

If you're considering mediation to resolve your legal dispute, consulting with a lawyer who can ensure you consider all angles during the mediation process can be helpful. It can increase your chances of a successful mediation.

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