Mediation and Pragmatism/Martin Rosenfeld, JD

Posted on January 22, 2017


Attorney/Mediator Christopher McHallam recently posted his thoughts on “4 Things You Should Know About Civil Mediation” at One of the motivations he outlined in encouraging mediated settlements is that of pragmatic interests. What is interesting about this discussion is that mediation is often the only method by which these interests can be met. Arbitration or litigation would not be a good substitute if one wishes to attain these goals. The pragmatic advantages mediation can deliver, Mr. McHallam tells us, include the following

LowerCost/Time efficiency/Avoidance of unpleasantness/Preservation of reputation/Avoiding the prospect of “losing”

What Mr. McHallam is pointing out is that mediation is uniquely suited for outcomes that go beyond the usual binary outcome of Winning V. Losing. If one would rephrame this discussion, it would be that mediation can lead to Win-Win. Neither arbitration nor litigation can yield such a result. If Win-Win is desirable, the conclusion is self-evident: “Mediate don’t litigate”.