Why We Recommend Mediation Instead of Extended Negotiations
A More Focused and Often More Cost-Effective Way to Resolve Your Case
Many clients understandably believe that having the attorneys exchange settlement proposals by email or telephone will be less expensive than scheduling mediation. Sometimes it is. However, our experience has shown that extended attorney-to-attorney negotiations can quickly become more expensive than mediation.
THE HIDDEN COST OF “BACK-AND-FORTH” NEGOTIATIONS
A settlement proposal rarely involves simply sending one email to the other attorney.
When a proposal is made or received, your legal team may need to:
- Review and analyze the proposal;
- Discuss the proposal with you;
- Calculate the financial and legal consequences;
- Prepare a counterproposal;
- Communicate with opposing counsel;
- Review the other party’s response;
- Discuss that response with you; and
- Repeat the process with each new proposal or counterproposal.
Each round of negotiations requires attorney and staff time. When this process continues over several days or weeks, the legal fees associated with negotiating can add up quickly.
Even more importantly, after incurring those fees, the parties may still be unable to reach an agreement and ultimately need mediation anyway.
WHY MEDIATION CAN BE MORE EFFICIENT
Mediation concentrates the settlement process into a dedicated block of time.
Instead of exchanging proposals over days or weeks, both parties, their attorneys, and a neutral mediator are focused on resolving the case at the same time.
Questions can be answered immediately. Proposals and counterproposals can be evaluated in real time. The mediator can help identify the issues preventing settlement, assist the parties in evaluating their positions, and explore compromises that may not develop through an exchange of emails between attorneys.
MEDIATION IS NOT ALWAYS CHEAPER — BUT IT OFTEN MAKES BETTER USE OF YOUR LEGAL FEES
Mediation has a cost, and there is never a guarantee that a case will settle.
However, when substantial issues remain unresolved, we often believe that your legal fees are better spent preparing for and participating in a focused mediation than paying for repeated rounds of attorney-to-attorney negotiations.
There are situations where direct negotiation makes sense. If the parties are already close to an agreement or a particular issue can reasonably be resolved with a limited exchange between counsel, we may recommend doing so.
What we generally want to avoid is an open-ended negotiation process in which proposals and counterproposals continue to generate legal fees without meaningful progress toward settlement.
| IMPORTANT: If negotiations do not result in an agreement, you may ultimately incur both the cost of the negotiations and the cost of mediation. |
OUR GOAL: RESOLUTION, NOT PROLONGED NEGOTIATION
Our goal is to help you reach a fair and informed resolution while using your legal resources as efficiently as reasonably possible.
For that reason, when significant issues remain in dispute, our general recommendation is to move the settlement discussion to mediation rather than engage in prolonged attorney-to-attorney negotiations.
Please speak with your attorney about whether mediation is appropriate for your case and the best time to schedule it.
BAGINSKI BRANDT & BRANDT
Family Law Attorneys
