Attorneys trying to help their clients navigate complicated issues often help their clients prepare for litigation. They may advise their clients of their basic rights and then help them determine the best possible outcome given their current circumstances.
In certain cases, litigation may be the best way to resolve disagreements. However, litigation leaves many people uncertain about their rights or worried about the outcome of the dispute. After all, a judge may not necessarily agree with their interpretation of the situation. Additionally, clients often have to disclose deeply personal or private business matters in court to adequately explain their circumstances.
In some cases, lawyers helping their clients navigate disputes may want to propose mediation as an option. Not only does mediation put clients in the driver’s seat by giving them more control over the outcome, but it also provides them with enhanced privacy due to confidentiality rules.
Mediation is a privileged process
What people discuss in open court typically becomes part of the public record. If employers try to justify denying a worker the severance pay outlined in their employment agreement, they may have to disclose concerning details about the worker’s job performance to justify that decision.
Records of the court case could then affect the reputation of the professional involved in the dispute and the company that decided to terminate them without severance. Both parties may experience reputation damage and lost opportunities specifically because of what they disclosed during court proceedings.
During mediation, discussions are confidential under the law. Mediation therefore provides an opportunity to discuss matters that are deeply personal or that have an impact on business operations. Lawyers who want to help their clients advocate for the most appropriate outcome to a conflict with another party may find that mediation provides an opportunity to adequately explore the issue without causing reputation damage or affecting a business’s ability to compete.
Under state statutes, disclosures made during mediation typically remain privileged. Only the final agreement negotiated by the parties is subject to review from others. In scenarios where the agreement results in the withdrawal of a lawsuit, even the final agreement may not necessarily need to become part of the public record.
Assisting a client as they navigate mediation or other forms of alternative dispute resolution can help them achieve the best possible outcome to a complex dispute. Lawyers may need to step outside of their comfort zone and consider alternative solutions rather than prioritizing litigation as the best and only solution for a significant conflict, and that’s okay.
