It was a scene from Cool Hand Luke, the 1967 film in which Newman played the eponymous Luke, who repeatedly escaped from prison after being sent there for attempting to steal money from parking meters.
 
Towards the end of the movie, Luke escapes for a third time, and takes refuge in a church, with the prison warden and guards in pursuit.  When they arrive outside the church, Luke goes to a window, and calls out to them, mockingly repeating a line delivered earlier by the prison warden: "What we got here is a failure to communicate." 
 
And that is what made me think of mediation. 
 
How many times has a failure to communicate caused a dispute or loss that becomes the subject of litigation?  The list is likely as long and varied as a lawyer's lifetime case list or a court's docket. 
 
Mediation can change all of that.  Contrary to the prison warden's view of communication (he speaks and the prisoners listen), or the lack of communication that caused the problem at issue in a legal action, effective, two-way communication is the heart and soul of the mediation process. 
 
This works in a number of ways.
 
For example, a mediation session often is the first time that the parties have been in the same room since the underlying event (except, perhaps, for an uncomfortable deposition or tense court appearance).  The mere presence of the parties creates an opportunity for communication.  The principals can look each other in the eye as they explain their version of events or express what they need to resolve the matter, unfiltered by formal pleadings or heavily-edited discovery responses. 
 
In addition, one of the mediator's primary aims is to keep the parties thinking and talking, either directly or through the mediator, and to guide the communications along a path most likely to lead to a resolution.   A relaxed atmosphere, giving the parties as much time as needed to express themselves, the confidential nature of the session, and letting participants know that they are being heard and understood, all enhance the communication process.

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Being ready to try a case does not mean that trial is the best
way to proceed.  An imminent trial often suggests that neither side was able to dispose of the case by summary judgment or otherwise, perhaps due to difficult facts, uncertain law, stubborn positions, or even a lack of resources.

As a trial date approaches, so may the realization that the central issues and decisions affecting your case are soon to be placed in the hands of an unpredictable judge or jury.

Mediation, in particular, offers the opportunity to avoid the time, cost, and uncertainty of trial and, instead, arrive at a timely, cost-effective, and certain result that satisfies all parties.

At BDRS, mediation and other ADR services focus on litigation (and claims likely to end up in litigation) involving a range of business, tort, and insurance matters. 

For a review of those areas, please see Areas of Focus under the Services section of the BDRS Web site.