Wednesday, July 23, 2014

The Benefits of Mediation and the Temptation of Trial by Bo Murphy

            This week I had the privilege of sitting in on my first mediation, and it was in the divorce of a long-term marriage. Before my time at Rice Law, I really did not know much about mediation, or the reason why the State of Tennessee forces such a process upon every divorcing couple in the state. After seeing the process this week, I strongly believe in the method and that with the proper mediator and an open mind most cases would settle.
            A common phrase in the divorce field goes something like the client telling the attorney, “I would rather pay you all of my money in trial, than my spouse get anything.”  While the attorneys would be more than happy to oblige this request, it would not be good for the client or their family. One of the benefits of mediation is that it helps the unrealistic or unwilling client to see the benefits of settling the case that day and agreeing to perhaps less than they wanted, but more than the risk of litigation, or as attorneys say, “It gives the client one in the hand, instead of going for the two in the bush.” By doing this, it ensures that the client will be able to live their life with much more than if they continued the case on to trial.
            This possibility of getting everything from the opposing spouse at trial, which never happens, is what breaks down all barriers at mediation. The good news for attorneys having this type of client is that they can keep their client from having this mindset from the start; all they have to do is make their client see the reality and risk of litigation and the benefits of settling at mediation. As soon as the client files the complaint for divorce, their attorney should be developing a positive outlook towards mediation, instead having it represent another step to trial.
            It is a certainty that not all people will settle their case in mediation for a variety of reasons, which include a poor mediator, lacking attorney efforts, etc. Even though it is a certainty, the legal field can still attempt to get as many mediated out as possible, thereby saving the client time, money, and heartache.

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