Early Mediation: Vehicle For Speedy, Cost-Effective Dispute Resolution
Attorney Vincent Pisegna
The first reported use of mediation was in 4500 BCE in Ancient Mesopotamia when disputants were required to address their problem to the mashkim before seeking any redress before the then-extant formal dispute resolution forum.
So mediation has been around for a long time. In the United States mediation became widely popular in the 1970s when civil court dockets became overloaded and today, virtually every civil case goes to mediation in one form of another before going to trial.
Maybe the Sumerians in Mesopotamia got it right. So-called early mediation is one of the increasingly popular forms of mediation. Early mediation is a mediation which is conducted very early in a dispute, usually either before a lawsuit is commenced or shortly after the filing of a complaint in court. This article will discuss the issues to consider in deciding whether to take your case to early mediation. By way of full disclosure, the author thinks that in most cases early mediation is a good idea.
- Knowledge of the facts
One primary consideration in analyzing whether early mediation is appropriate for your case is whether you know enough about the facts to engage in a serious process to resolve the dispute. On one hand, in this age of electronic media with emails and the like, it is much more common to know the essential facts of the case without engaging in time consuming, costly formal discovery procedures. On the other hand, there may be cases where it is essential to obtain at least the key documents from the other side like internal emails.
- Discovery of Opposing Case
During mediation, you will have the opportunity to discover the facts that the opposing side thinks are important. After all, when you go into a mediation the goal is to settle the case and to do that you need to convince the opposing party of the strength of your case. To do so, it is necessary to break out the good stuff, the facts that are most compelling from your side of the case. In most mediations, after a few hours, the factual disputes are readily apparent as are the respective factual positions of the parties. In fact, whether the case settles in mediation or not there is some considerable value to discover the opposing side’s view of the case factually should you go forward with the rest of the case.
- Discovery Legal Strategy
Similarly, during most mediations, after a few hours it becomes clear what legal strategies a party is likely to pursue in the case. Are they going to seek a preliminary injunction or summary judgment or a motion to dismiss some of the claims? Knowledge of that strategy could be useful again even if the case does not settle.
- Positions Not Hardened
In the great majority of cases, the positions of the parties harden during the discovery process. I’ve seen this many times. At the outset there is a fairly open minded evaluation of the case in order to assess how to proceed or whether to proceed with the case. But as discovery continues, depositions are taken and documents are reviewed, the parties stiffen their resolve both by way of being convinced of their own side of the case but also by critically assessing the case that you perceive the other side as presenting. Sometimes the most creative thinking to resolve a dispute, especially a business dispute, occurs before you marshal the troops for battle.
- Distraction
Clients most often underestimate the degree of distraction that a civil lawsuit presents. There is a reason why there are so many lawyer shows on television. Disputes and the frailties of the human condition are interesting and often the subject of water cooler talk. So instead of thinking about ways for your business to advance its interests, you are thinking about why your lawsuit position is right and the opposing parties position is wrong.
- Legal Expense
I am burying the lead here but the foremost consideration in deciding whether to engage in early mediation is the often massive cost of engaging in discovery and, if necessary, trial. I think one of the reasons that mediation has become almost universal in civil cases is because parties acknowledge the expense of litigating and are willing to engage in a dispute resolution process that is less than perfect in order to avoid the cost and distraction of litigation.
The Equal Employment Opportunity Commission (EEOC) requires early mediation for all charges of employment discrimination filed within its jurisdiction. A recent study of the outcomes of those early mediation cases shows that 72% of cases are resolved at early mediation. More importantly, 96% of employers report being satisfied with the result and 91% of charging parties report being satisfied with the result.
Thus, it is imperative that you at least consider early mediation. Your client will be glad that you are considering minimizing their litigation costs, and, if the case settles, they will be even happier with achieving closure of the matter.
