Why Should We Mediate?

If you are saying “Why should se mediate? We aren’t going to agree anyway,” then this post is definitely for you. There are many statistics regarding percentage of cases that settle in mediation versus going to trial. Some google links will says 70% of case settle, others will say 86% of cases settle, and still others will say 90% of cases settle. What you probably won’t see on a google search is “What percentage of cases settle when they thought it would never settle?” What I can tell you from experience is that I hear that question “Why should we mediate?” all the time in my practice. I hear the parties and/or attorneys says “This is going to be the quickest mediation because it isn’t going to settle.” Then 4, 6, 8 hours later the parties leave with a settlement. So let’s delve into why you should mediate.

1. Cases Settle

Simply put, most cases settle. In my case, my settlement rate is right around 90-95% settlement, meaning only about 5-10% of cases that come to me go on to trial. During mediation we discuss the wants of the parties, the pros and cons of each case, and work towards a negotiated settlement. As a result of settling the case, the parties leave knowing that they reached the agreement, not letting a Judge decide their fate. The parties had control over the overall outcome instead of hoping the Judge would side with them during trial.

2.  Informal Setting

Mediation is often informal and frequently via Zoom (or similar platform). There are no discovery and evidence formalities. The parties are free to talk with the mediator about their needs. No objections by the other side. When parties go to trial they are subject to the rules of evidence and have to get their side told through questions and answers rather than free flow talk. In mediation, the mediator get the opportunity to hear from each party and their attorneys and learn about the case.  This lack of evidentiary rules and formality of getting the story told allows the mediator to delve into the case looking for areas to negotiate.

3.  Most Texas Courts Require It

So maybe this isn’t the most motivating reason to mediate, however, it is one of the main reasons people attend mediation. In family law, nearly every Court requires mediation before Temporary Orders and before a Final Trial. To learn about Temporary Orders, click here. Judges know that mediation works, even in the difficult cases, so they require parties to attempt to settle their case prior to going to trial.