I’m Mike Hackard. I’ve written two books about estate & trust litigation. Both books include particular observations as to mediation. When we think of “the best day,” few of us would think of litigation. I probably wouldn’t make the connection but for a statement that many mediators give at the beginning of an estate & trust mediation day.
Good mediators say something like this: “Don’t’ expect to get your best-day results at a trial. Mediation is a process of give and take, weighing risk and reward, factoring in financial and emotional costs of trial and finding a way toward closure – for finality.” I’ll add – don’t expect to get your worst day, either.
I’d also add – you, the client, are neither forced into the mediation nor mandated to accept a suggested resolution.
I write and talk about mediation a lot. It’s because some 97% of all California civil cases settle before trial. Mediation is a very common path to settlement of lawsuits. It’s that simple. If you’re involved in litigation, you should know something about mediation.
Mediation can occur prior to the filing of a lawsuit, shortly after filing, at the midpoint of litigation, as well as on the eve of trial. There are often good reasons for mediating at any one point.
Whenever and however mediated, mediations are steeped in human emotions. Mediation participants may witness the spectrum of human virtues and vices that come into play in moving from conflict to resolution. Mediators and the disputing parties lawyers have seen this time and time again.
It is important to pay attention because each mediation is split in two: Emotions on the one hand and legal and factual arguments on the other. There are all kinds of mediation techniques and generalized do’s and don’ts.
That said, experience counts. It helps to know your adversary. It helps to know your mediator’s style. It helps to know how the opposing party’s attorney approaches cases. While knowledge doesn’t guarantee success, it might fill in some unknowns that can only be understood by the identification and understanding of nuance.
Hackard Law litigates (and mediates) significant trust and estate cases where we believe that we can make a significant difference and there is a wrongdoer who can be made financially responsible for their wrongdoing.
If you would like to speak with us about your case, then call us at 916 313-3030.