The familiar adage “a bird in the hand is worth two in the bush” means it is better to have a lesser, but certain, result than to risk everything for the mere potential of achieving a greater result.   I often use this phrase to explain to my clients the benefits of reaching a settlement through mediation by obtaining a certain result, rather than continuing to litigate for a mere potential of achieving more, but risking receiving nothing.

Civil litigation is risky; no matter how much you believe you are right, there is no such thing as a “slam dunk” case.  Civil litigation is adversarial – it is stressful, frustrating, and invasive, often requiring you to divulge otherwise private facts in a public forum.  Civil litigation is costly, not only in terms of the fees and costs paid to your attorney but also the loss of your own time spent in your lawyer’s office or in court.

As a result of these inherent risks and costs, often, neither party “wins” by continuing to litigate.   Rather, at the conclusion of a case, one party may receive a judgment that says he or she has the right to a certain amount of money from the other party.   The “winning” party, however, may have endured more stress and frustration and incurred more in fees, time and costs than the judgment is worth.   Further, the judgment that the “winning” party receives may not even be collectible.

Mediation is designed to avoid, as much as possible, these consequences.  Mediation is the process whereby the parties try to reach a middle ground through a voluntary agreement facilitated by a neutral party, the mediator.   At the mediation session, the mediator works with the parties to achieve an understanding of the factual and legal issues in dispute, and tries to help the parties agree to settle the dispute through understanding, acknowledgment, concession, and compromise.

Mediation is designed to be facilitative. Therefore, you must be prepared to discuss both the strengths and the weaknesses in your case (and yes, all cases have weaknesses) and listen to the other side with an open mind and an eye toward reaching consensus rather than furthering controversy.  Because mediation necessarily involves compromise, issues resolved through mediation usually result in one party receiving less than he or she thinks to be entitled to, whereas the other party is usually giving more than he or she thinks just.

Thus, while mediation may not make you “winner”, it will avoid the risk that you will be a “loser”.  Mediation puts you in control of your destiny; you decide what terms you can live with, not a judge or “jury of your peers” (who may have no more qualification to decide your case than possessing a driver’s license).  There is certainty in the result, and your risk of going forward is eliminated.  There is also the immeasurable value in putting a dispute behind you.

In summary, if you find yourself involved in litigation, consider opting for the “bird in hand” that may be reached through the mediation process.

– Nancy E. Brandt, Esq., manages the commercial litigation department of Bogin, Munns, & Munns, P.A., a full service law firm with offices in Orlando, Clermont, Kissimmee, Deltona, Daytona Beach, Ocala, Melbourne, Gainesville, and Leesburg, Florida.  She welcomes questions and comments regarding the above and can be reached at nancyb@boginmunns.com.

NO LEGAL ADVICE: This blog entry is not intended as legal advice nor should you consider it as such. It is intended only as general information.  You should not act upon this information without retaining professional legal counsel. Please keep in mind that merely subscribing to or reading this blog or otherwise contacting Bogin Munns & Munns, P.A. in the manner that you have will not establish an attorney-client relationship with our firm. Bogin Munns & Munns, P.A. cannot represent you until the firm knows there would not be a conflict of interest, and the firm determines that it is otherwise able to accept the engagement.