Mediation before litigation has a huge range of benefits for clients but is not something that is widely adopted by lawyers. While pre-litigation mediation is compulsory in areas, such as retail leasing, franchising, farm debt and some areas of family law, its use outside of these areas is limited.
In this article, we consider why giving early mediation a try could be the smartest move for solving your disputes. We also look at what you need to consider before deciding whether early mediation is the right strategy for your dispute.
Understanding Early Mediation
Mediation's Role in Conflict Resolution
Mediation is a key part of resolving disputes outside of court. It involves a neutral mediator who works with everyone to find a fair solution. This is all about keeping control in the hands of the people involved, not a judge. The mediator's job? To get everyone talking about what they really need and to come up with a solution that makes sense for the long haul. It's about working with the different perspectives and beliefs of each side rather than deciding which of those is right.
Bringing the big picture into view
Early mediation forces everyone to look at the big picture of the dispute early. In deciding whether or not to settle at mediation, everyone needs to have considered the likely costs of litigation. For the plaintiff, investigating the defendant and their likely ability to pay any amount ordered by the court is critical. Many is the time where, deep in the litigation process, the plaintiff suddenly learns that even if they win at trial, the defendant has no assets from which to pay an amount owed. The client may feel that they lawyer has encouraged them to litigate on the basis of a great legal case but never warned them about the risk of not recovering what is owed.
Protecting confidentiality
Confidentiality is at the heart of mediation. The information shared at mediation is generally shared for the purpose of mediation only. The fact that you can choose to disclose sensitive matters to the mediator and not to the other side also assists. Information that is important to bringing the parties to resolution can be carefully managed by the mediator to help the parties move to a resolution, but protecting that information at the same time.
Getting to the heart of the dispute fast
By starting mediation before litigation, you can get to the bottom of things quickly. While your lawyers may identify several different types of legal claims, what they learn at mediation may mean some of these disappear. This means that if litigation is still required, there will be fewer "causes of action" (legal speak for specific types of claims) to include and a corresponding reduction in cost.
Keeping things from escalating
One of the problems with litigation, is that every time the client gets a bill from their lawyer, they can become a little more resentful of the other side for putting them in a position where they have to incur these costs. The level of tension increases and there are more psychological barriers to settlement. Early mediation gets to things before this psychological escalation to increase the likelihood of a settlement.
When should you not mediate early
Generally, early mediation should be considered for every dispute. There will be some cases however where it is not appropriate.
The other side doesn't want to participate.
If the other side has failed to engage in negotiations and is not even at the negotiation table, it is unlikely they can be persuaded to attend a non-mandatory mediation. That being said, asking your preferred mediator to reach out to the other side may be useful. The mediator can fully explain what is involved in mediation and demonstrate to the other side the risks of not participating. If the other side trusts the mediator, they may be willing to engage in the process.
The issues really are legal
If your dispute is of a highly technical nature requiring expert evidence and novel legal arguments litigation may be the better option. Even though litigation is often expensive and stressful for many businesses it sometimes a necessary evil, hopefully only on an occasional basis.
The final world
Disputes are an unavoidable part of doing business but they don't have to come with the lengthy delays and hefty bills connected with litigation. If you are in the unfortunate position of having a dispute that you are unable to resolve for yourself, then speaking with your lawyer about early mediation could be the solution you need to close the dispute and get back your focus on building your business.
To learn more about early mediation or for guidance on managing a business dispute reach out to Nicole Davidson Negotiation for a no obligation discussion.