Moving Beyond "There Was Much Gnashing of Teeth" in Mediation: A Ft. Worth Mediator's Perspective
Parties and attorneys sometimes enter mediation figuratively "gnashing their teeth," fueled by the belief that their position is without flaw and impervious to attack. This fervent conviction is natural; a case that possessed clear-cut strengths on both sides would have likely settled long ago. Each participant has lived with their narrative, built their arguments, and genuinely feels bulletproof. This passion is the engine of litigation, but in the unique environment of a Texas mediation, it is a hindrance. The mediator understands the intensity of these deeply held beliefs and does not need them proven. Instead, the focus should shift from adversarial posturing to a collaborative, albeit difficult, assessment of risk and opportunity for resolution.
From the perspective of a seasoned Texas mediator, the courtroom is a great equalizer that can swiftly peel away a party's armor. Trials are unpredictable, expensive, and emotionally draining, often yielding results that neither side fully anticipates or desires. Evidence is excluded, key witnesses falter under cross-examination, and judges or juries can interpret facts in unexpected ways. The perceived invincibility that fuels pre-mediation bravado is a mirage that the reality of a trial can quickly dispel. A successful mediation acknowledges these inherent risks, moving the conversation away from who is "right" and toward the pragmatic realities of a potential outcome.
The true value of a Texas mediation lies in using the mediator as a neutral, experienced facilitator to explore settlement possibilities. The mediator’s role is not to judge the merits of the case but to help each side conduct a sober cost-benefit analysis. This involves a frank discussion of the best-case scenarios versus the substantial dangers and expenses of going to trial. The passion for the case, while commendable, must be tempered by a cold, hard look at the probability of success and the potential for an adverse judgment that could be far worse than a negotiated compromise.
Instead of engaging in fruitless argument, participants should leverage the mediator to communicate offers and perspectives with a level of detachment the parties themselves cannot achieve. The mediator can convey the strengths and weaknesses of each side's position without the acrimony of direct confrontation, facilitating a productive exchange that moves beyond emotional roadblocks. This process allows attorneys to provide candid advice to their clients regarding the unpredictability of litigation, steering them toward a thoughtful business decision rather than an emotional battle.
Ever since mediation arrived on the Texas litigation scene, the goal of a mediation is self-determination—empowering the parties to control their own destiny rather than ceding that power to a judge or jury. By leaving the "teeth-gnashing" at the door, parties and attorneys can engage in the deliberate, practical work necessary to find common ground. A settlement, even a difficult one, provides certainty and finality, allowing everyone to move forward. Embracing the mediator’s assistance is not a sign of weakness, but a strategic recognition that a guaranteed, albeit imperfect, resolution today is often superior to the risks and costs of a trial tomorrow.