Not all cases need to settle

A few weeks ago one of my cases was mediated by a retired family court judge. It began with the her talking privately to me and the other attorney. In the previous months opposing counsel and I had tried two cases to verdict. I mentioned that to our mediator, who replied that she thought, “more cases need to go trial.” She indicated that, since becoming a mediator, she had settled numerous cases in which she thought one party would have been better off proceeding to trial.

While I find her observation accurate, I found her statement surprising. When I first started practicing family law 23 years ago, few cases were mediated–although most cased settled through negotiation. Even before mediation became mandatory a few years ago most cases were mediated and most of those cases settled in mediation. Now that South Carolina’s family court is “mandatory mediation” most attorneys have fewer trials and less experienced attorneys may have limited opportunities to try complex divorce or custody cases.

Yet the ability and willingness to try cases are required skills to be an effective advocate. Mediators will often scare litigants into settling by mentioning the expense and risk of trial. While both are legitimate concerns, neither is a reason to forgo important and achievable goals. Further these argument cut both ways–the opposing party also has the risk and expense of litigation if the matter doesn’t settle.

There are some cases that absolutely should settle unless one side is literally crazy. Going to trial over custody of a well adjusted seventeen year old or fighting over a $50.00 per month child support dispute for a sixteen year old are situations in which resolution by coin flip would be more cost effective.

But some cases simply need to be tried. When two good parents live geographically distant from the other and both seek custody, compromise isn’t really possible. When one parent, for good reason, seeks termination of the other parent’s parental rights, the second parent has little reason to give in and the first parent must proceed to trial to protect the child. Where there are substantial disputes on support or property division issues, trial is often preferable to settling on highly unfavorable terms.

Including contempt actions, I probably try five to ten cases a year that last one day or longer. In the past few years I’ve won many and lost a few. Yet every single case I tried needed to be tried, as a judge’s decision was the only method of getting one or both parties to accept reason. Even in the few I’ve lost, my clients have generally been happier to have tried the case than settled or withdrawn the case. Having one’s “day in court,” and having a wise and neutral decision maker consider one’s concerns, has value. These clients appreciated that. Sometimes, with those cases I’ve lost, the parties were able to find a way to move forward and reduce or resolve that areas of tension that had necessitated the trial.

While mediation is a very useful method of dispute resolution, and frequently leads to just resolutions, not every case needs to settle. Few folks should be more invested in settling cases than a retired family court judge turned mediator. Yet she is telling us that many cases settle in mediation that shouldn’t have settled. One should heed her advice.

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