Mediation Myths - Discussing or proposing mediation is a sign of weakness

By Danny Gelb

This statement is completely false. The origin of this myth is from the mistaken belief that an offer to mediate demonstrates an uncertainty in one’s case.

To those that have not been through mediation this myth does sound as though it may have merit. Irrespective of how weak your opposing party might be does not change the basic fundamentals of mediation. It’s potentially quicker, cheaper, and less stressful than the courts. Why then spend the tens of thousands going to court only because you perceive that the other side has a weak case. If your case is so strong, say your lawyer says 75%, then why are they fighting it? Why don't they just simply role over and pay?

If your lawyer says you have a 75% chance, does that translate to the other party’s lawyer must be telling his client that he or she only has a 25% chance? Would it be a possibility that the other party’s legal team also believe that they have a 75% chance? This is not an uncommon scenario. The outcome we can now guarantee is that at least one party is going to receive a major disappointment with the court result. The only question now to ask, is it going to be you or the others side? Welcome to the world of litigation.

Discussing or proposing mediation does demonstrate that the client wants to save time and money by resolving the dispute constructively with a chance of a creative solution being found that is a win for both parties.