Litigation Strategy

Come Together, Right Now, and Mediate!

Mediation has become a widely accepted way of resolving disputes because it works. Mediators report that typically 85-95 percent of mediated cases result in a settlement, often with an investment of only one long day or two.  Among the advantages of mediation is that it fully engages the most important players, i.e., those who initiated the dispute and are most affected by it. Here are some other advantages that might just make you want to come together and mediate!

Some of the key advantages of mediation include:

  • Mediation is cheaper. Mediation is much less costly than arbitration or trial.
  • Mediation raises possibility of settlement. At the very least, mediation invariably introduces the possibility of settlement, which is often an attractive alternative to the risks of continued litigation.
  • Mediation is flexible. Mediation is not bound by procedural rules and thus the parties can design a process that fits the particular conflict.
  • Mediation shows more solutions. Mediation lends itself to creative solutions that are outside the scope of the legal remedies available in litigation.
  • Mediation is facilitated. The mediator’s fresh and nonvested perspective may foster possibilities for forging a settlement that the parties and their counsel could not have accomplished on their own.
  • Parties control mediation. By choosing mediation, the parties control many components of dispute resolution, including when the dispute is addressed, who will make the decisions about the dispute, who will mediate the dispute, what the outcome will be.

Almost every case can benefit in some way from a mediation session. For a pretty extreme example, the Ninth Circuit just ordered mediation for a case involving a foreign company and its alleged role in spurring civil war in a South Pacific country. 

Even if the case doesn’t settle on the day of the mediation, the parties usually learn something from hearing the other side’s presentation or the mediator’s evaluation. Also, the mediator’s follow-up after a session that has not resulted in a settlement, or the possibilities brought to light during the parties’ negotiations, may ripen later into an acceptable resolution.

Of course mediation may not always be appropriate. For example, establishing a legal precedent may be valuable when the law is unsettled and similar cases would be affected. Or, a trial record in a case may be essential to public knowledge of important policy issues. Some court-connected ADR programs (especially appellate programs) authorize the program administrator to consult with counsel to discuss the appropriateness of mediation in a particular case.

For more on mediation and other methods of alternative dispute resolution, go to California Civil Procedure Before Trial, chap 45 (4th ed Cal CEB 2004).

© The Regents of the University of California, 2010. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

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