Alternative dispute resolution has long been heralded as a cost-efficient method of resolving disputes. It is, of course, founded on the premise that to the extent protracted and expensive litigation and the uncertainty of result can be avoided, the parties to the dispute benefit in equal measure. While in its formative years ADR processes were typically invoked on the eve of or close to trial, there is an increasing recognition that “early intervention” should be on the parties’ and counsel’s checklist of options as a dispute begins to simmer.
The logical extension of early intervention is pre-suit mediation. Either immediately on the eve of or following an employee termination, a catastrophic accident, or a roiling business dispute, to cite a few examples, agreements to refrain from filing suit pending mediation are playing an increasing role in the ADR process. But before considering the pluses and minuses of pre-suit mediation, a quick spoiler alert. Pre-suit mediation is not for every case. In selected matters, pre-suit mediation can be enormously helpful; in the wrong dispute, or with the wrong set of parties (or counsel), it can be counterproductive.
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