What happens if mediation fails?

Mediation is a powerful tool for any litigator’s toolbox when trying to get a case resolved pre-trial. Mediation is a time to actively listen to and evaluate the opposition's opinions, as well as try to negotiate a resolution. However, as we all know, mediation does not always end in a settlement. So, what happens when the mediation fails at resolving the case?





Just because it doesn’t settle at mediation doesn’t mean it won’t settle.


If a case doesn’t settle at mediation, that does not mean all potential for settlement is gone. In some cases, parties continue to think about what was said at mediation for days, weeks, or even months following the mediation. Those thoughts may result in a shift in their case evaluation and cause them to come back to the negotiating table before a trial. I have experienced situations where mediation failed and we were still tens of thousands of dollars away from reaching an agreement, just to have the other attorney call me two weeks later to restart negotiations and settle the case.


Don’t just wait around hoping for a settlement.


Just because the case may settle after a failed mediation is not an excuse to sit on your hands waiting. Part of what causes a case to settle is the reality of an upcoming trial date and an opponent that is showing they are prepared for that trial. If mediation fails, finish getting your case prepared for trial. File the appropriate motions, send out your trial subpoenas, and take any remaining depositions you need.


This is the time to put the opposing party's feet to the fire and see if they are going to blink. At the same time, you should be actively reviewing the things they said at the mediation. The weaknesses in your case and the strengths in theirs. Was there merit to their assertions? If there was, can you cure it? If there was merit and you can’t cure it, should you be changing your case evaluation and restarting negotiations?


Try your case to a Judge or Jury!


If you still feel strongly about your position and the other side does as well, then tee it up and take it to the Courtroom. While a vast majority of cases that are filed settle, not all do. Sometimes the best thing to do is to try the case and let the Judge or Jury decide a victor. As litigators, we are judged by our successes and failures, and all of us have both in a Courtroom. As an older Alabama attorney once said to me, “if anyone tells you that there is no gambling in Alabama, they have clearly never been to a Courthouse and let a jury decide their case.” He said this because we have all tried cases we thought we should win, and lost; we have also all tried a case where we thought we should lose, and somehow come out on top.


The key to a good day in Court is preparation. Know your case, talk to your witnesses, prepare your client, get your evidence organized, have a second set of hands there to keep you organized throughout the trial, and trust that your evidence will carry the day.



If you have been injured in an accident and would like a free case consultation, please give us a call. We would love to hear from you, and assist you in evaluating your case.




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