As a lawyer/mediator, I have had very few opportunities to participate in a mediation as a litigant. But I did once, which gave me some insight into why clients like mediation.
My wife and I were selling our house. A buyer looked at it, decided he wanted it, signed a purchase contract and put down a $1,000 deposit. There were some small repairs he wanted, which we hired a contractor to complete. Then a week or so later he decided he did not want to buy the house after all. Through our realtor we learned that our house was near where his ex-wife and children were going to live, but once his new girlfriend found out, she demanded that he not buy a house so near the ex-wife. All fine and understandable, but not a legal reason to break the contract, so I got to keep the $1,000. He threatened to sue, but after some persuasion, I got him to agree to mediation.
I, like most litigants, thought I had an airtight case. No way to lose. He breeched, the money was mine. He would surely see reason in mediation.
At the mediation, we talked about the background to the situation. We shared documents and paperwork. He had signed the contract, paid the deposit, and then refused to perform. He began to explain how the house was defective and we had breeched first. When we were discussing a particular point, I rebutted his contention, and so to support it, he looked at me and lied. He knew he was lying, he had to know that I knew he was lying, but he lied anyway. I had documents to support my contention, but I could not prove he was lying. At that point, my strategy changed and I no longer was trying to win. I was trying minimize my losses. I wanted to get whatever I could and get out. I realized that he could and probably would lie in court. There I also could not prove he was lying. I would be at the mercy of a tired and busy judge who may not make much effort to figure out who was telling the truth. The situation would be out of my control and I had no idea what a judge might do. I could envision the case going really badly and possibly having to pay his costs and fees in addition to losing the $1,000.
Why do clients like mediation? Because they retain control over their own case and their own fate. I discovered that my case was much more perilous than I had evaluated, therefore I needed to get out. I needed to end the dispute while I still had some control, rather than relinquish all control to a busy, overworked judge, irritated at having his court taken up by this trivial case. Mediation was my last chance to control my own destiny. I took control, cut my losses and settled for what I could get.
Mediation is an opportunity for the parties to still exercise control while having the assistance of trained mediators in facilitating the parties’ communication. I was glad I had the opportunity to mediate.