| Myth |
Reality |
| Mediation can be used to compel discovery. |
Under FINRA Dispute Resolution mediation procedures, you produce information you wish the other parties to see and review. Nothing you say or show to the mediator will be communicated to the other side without your express permission. |
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| Myth |
Reality |
| Mediation is just another step that takes more time and slows down the litigation or arbitration process. |
The administration of the mediation runs separate from, and concurrent with, the pending arbitration or litigation. Your FINRA Dispute Resolution arbitration case will not be delayed at all unless the parties agree to stay the arbitration pending the mediation.
A mediation session can be scheduled within a few days, if necessary. |
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| Myth |
Reality |
| Mediation is just another step that is going to cost us even more time and money. |
In surveys of parties mediating with FINRA Dispute Resolution, 80% of the survey respondents agreed that mediation resulted in time savings and 77% agreed that mediation resulted in cost savings.
Mediation fees are nominal compared to the potential savings of a settlement. An early settlement means greatly reduced discovery, lower legal costs, and less down time for parties or witnesses. |
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| Myth |
Reality |
| If I suggest mediation to my adversary, he or she will think I have a weak case. It will really be perceived as a settlement offer. |
FINRA Dispute Resolution staff will approach the other party and seek its agreement to mediate if you wish.
Experienced litigators routinely suggest mediation on many of their cases. |
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| Myth |
Reality |
| If I offer or agree to mediate, my client or superior may think I am not confident in my own ability to negotiate a settlement or win the arbitration. |
Business leaders and attorneys use mediation to reduce litigation costs and settle cases faster. They understand that you can mediate from a position of strength. They know a mediator can make an adversary listen to reality when he or she would refuse to listen to opposing counsel.
Moreover, having your client participate in a mediation affords your client the ability to participate in the resolution of the problem, and generates confidence in the ultimate outcome. |
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| Myth |
Reality |
| The mediator may announce a dollar value of the case that is so far off base, and so far from my own last offer, that it will only make my adversary take a more intransigent position. |
The mediator will not announce his or her valuation of the claim without the express consent of the parties.
You choose the mediator based on the neutral's background, mediation experience, and style. |
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| Myth |
Reality |
| If the mediation fails to produce a settlement, I've just wasted my client's time and money. |
Mediation works and the vast majority of cases settle when using a competent neutral. Attorneys who use mediation find it is usually productive even if the case impasses: the scope of outstanding issues narrowed; the extent and cost of discovery are reduced; extreme and unrealistic positions are softened.
The mediator can help you identify (in confidence) weaknesses in your own case and strengths in the other side's case that you might never have spotted.
You may be better positioned to pursue your case in arbitration after a mediation. |
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| Myth |
Reality |
| There is no point in mediating if I've got a sure winner. |
It can still take thousands of dollars, hours of legal work, and many hours of lost employee time before your adversary finally figures this out.
A mediation session can be scheduled within days or weeks of the parties' agreement to mediate, and a settlement reached before such an expenditure of time and money becomes necessary.
Arbitration or litigation can produce unexpected outcomes. |
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| Myth |
Reality |
| Mediation is really just a lot of psycho-babble. I don't believe in "win-win." I win because I can make the other side lose. Mediation is for wimps. |
Mediation opens new opportunities to settle. Experience shows that both sides will benefit from a well-crafted settlement that they help create. |
