Originally from:

AAA Handbook on Mediation - Third Edition

TEN WAYS TO USE MEDIATION TO ASSESS RISK MORE EFFECTIVELY

Nancy F. Lesser 

In a perfect world, before giving a client advice about whether to settle or try a case, counsel would be in possession of all relevant information about the matter. Counsel would know whether her client’s witnesses will dazzle the jury or disappoint; would have seen the hidden skeletons lurking in the client’s files; would have assessed how the other side’s counsel and witnesses performed during their depositions; and would have learned how determined the opposing party is to wage war. All of this information would enable counsel to determine the ultimate question: whether her client’s case is a dream or a dog, or more likely something in between.

Although the world is imperfect, lawyers are routinely called upon to decide the value of a case when all they have is imperfect information and an overwrought client. Lawyers do the best risk analysis they can under such conditions, but often what they tell clients is just an educated guess. This is particularly true if they are asked to value a case before any discovery has taken place. So what can counsel do?

This article suggests that mediation may be one possible answer to achieving better risk assessment and case valuation. A fair number of practitioners still denigrate the use of mediation as a discovery device. And though I am not advocating that mediation substitute for formal discovery, I am suggesting that it can help counsel obtain vital information about both sides of the case that will lead to better case valuations and decisions about settlement.