How to Make Pre-Litigation Mediation More Successful
Pre-litigation mediation can be difficult, especially if both parties are leery of making concessions when they may not yet have all the available evidence necessary to allow the parties to evaluate the case fully.
January 05, 2022 at 12:46 PM
6 minute read
By Emil Giordano
Mediation is a voluntary process in which an impartial person (the mediator) helps the parties with communication and works to promote reconciliation between the parties, allowing them to reach a mutually acceptable agreement. Mediation can be used in most conflicts ranging from disputes between consumers and merchants, landlords and tenants, and employers and employees, to disputes between family members (i.e., divorce, child custody, and visitation rights). It can also be used for complex business disputes or personal injury matters.
What Are the Benefits of Pre-Litigation Mediation?
Benefits to the Plaintiff
- Avoids expensive, prolonged, potentially emotionally-draining depositions and delays;
- Reduces the time to recovery of settlement funds;
- Allows plaintiffs to move forward with their lives sooner; and
- Provides a sense of certainty and finality.
Benefits to the Defendant
- Avoids disruption to the company;
- Helps keep the dispute confidential in what could otherwise be an embarrassing situation (especially in employment matters);
- Reduces extensive litigation costs;
- Keeps insurance rates from escalating from litigation exposure; and
- Provides a sense of certainty and finality.
Mediation may not be an appropriate option in some cases for reasons including the following:
- No party can be compelled to participate (except when ordered by a court);
- Parties may be unwilling to negotiate;
- Mediation may not be cost effective in specific cases;
- The plaintiff may not be willing to accept a lower settlement amount than they initially contemplated;
- The defendant may be unwilling to pay the plaintiff without conducting full discovery;
and
- Opposing counsel can be difficult to negotiate with.
When Is the Best Time to Commence a Pre-Litigation Mediation?
If informal discovery is possible, then mediation is recommended before costly discovery and depositions take place. In other cases, key depositions must take place first to allow for mediation to result in resolution. Generally, it is best to commence mediation earlier rather than later in high profile employment and entertainment cases, as well as in cases where numerous expert reports are necessary.
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