In almost every litigated dispute, the credibility, likeability and capability of the parties and their counsel are critical to the success or failure of their case.  Fortunately or unfortunately, as the case may be, each of these items affects the others, and all of these need to be carefully considered and weighed in any settlement evaluation.

Credibility – the quality or power of inspiring belief; [1] whether testimony is worthy of belief, based on competence of the witness and likelihood that it is true. Unless the testimony is contrary to other known facts or is extremely unlikely based on human experience, the test of credibility is purely subjective.[2]

Likeability – having qualities that bring about a favorable regard; [agreeability] pleasing to the mind or senses especially as according well with one’s tastes or needs.[3]

Capability – having attributes (as physical or mental power) required for performance or accomplishment.[4]

Mediation offers the decision-makers the opportunity to get to know the other party and his counsel through group discussion.  Frequently, because counsel tend to conduct most discovery independent of their clients, mediation is often the first time that the parties and/or decision makers actually meet each other in the litigation setting.   Although there may have been a 6-hour deposition, which the decision-maker has read cover to cover, it is no substitute for personally listening to and watching each party in a narrative discussion of the issues that form the basis of the claim and defenses.  It is each party’s opportunity to impress upon the other, why a claim or defense is valid.  This is not the time for legal discussion, but human discussion.  Human issues are what your jury will understand the best and give the greatest weight.   This is the opportunity for the decision-makers to personally evaluate the presentation made by the other parties and their counsel and determine if they have what it takes.

Although most mediators provide the opportunity for group discussion at some point in mediation, if not at the outset, far too many parties, counsel and even mediators, allow this opportunity to pass under the mistaken belief that, through discovery and informal discussions among counsel, the parties have seen all they need to see or told all they need to tell.   Don’t underestimate the value of this opportunity.  Group discussion in mediation is often your first and best opportunity to make or form a strong impression of the credibility, likeability and capability issues that will guide the resolution of your case.

 


[1] Merriam-Webster’s Online Dictionary, 10th Edition, http://www.m-w.com/. Last indexed: 15Mar2003.

[2] Law.com Dictionary, http://dictionary.law.com/. Last indexed: 27Jan2003.

[3] Merriam-Webster’s Online Dictionary, 10th Edition, http://www.m-w.com/. Last indexed: 15Mar2003.

[4] Merriam-Webster’s Online Dictionary, 10th Edition, http://www.m-w.com/. Last indexed: 15Mar2003.

 

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