Alternative Dispute Resolution (ADR) – Why Mediate? I want to win!

When a dispute has matured into full-blown litigation, often the relationship between the parties has soured and emotions run high. The natural result is for parties to eschew settlement and mediation and go for the all-out win in court. Mediation, however, should not be overlooked as an option, even in the most aggressive litigation strategies. Here are 3 reasons why.

1. Litigating to trial is expensive and risky. Modern trial strategy can involve written discovery, depositions, pre-trial motions, expert witnesses, trial preparation, and (finally) trial. Each of these can be expensive and can reduce net recovery if a judgment is obtained. And that’s assuming a victory. In a courtroom, as in life, there are no guarantees—no matter how strong a case may appear at the outset. Moreover, even if one party prefers a more cautious and conservation litigation strategy, the other party make take actions that drive up the cost of litigation. Mediation allows the parties hedge their bets and limit their losses by coming to a negotiated settlement earlier in the proceedings.
2. Mediation gives you insight into the other side’s case and strategy. When the parties get together under one roof and a professional mediator shuttles back and further between conference rooms, the parties are able to understand the theme and strategy of their opponent. This can be useful as a way to gauge the strength of the other party’s case and whether a settlement is preferable to trial.
3. Mediation lets you test arguments on a neutral third-party before trial. Mediators are often times retired judges. They are accustomed to hearing all sorts of legal arguments and have probably presided over similar cases when they were on the bench. In litigation, it is common for the parties and their lawyers to concentrate on their own arguments and theories so as to they lose objectivity. Many mediators will, at the parties’ request, be evaluative and let the parties know how the mediator views the strengths and weaknesses of the case. This objective view will help prepare parties for trial if the mediation is unsuccessful at producing a settlement.

There are other advantages to mediation. The important thing to remember is that agreeing to mediation does not necessarily commit the parties to settlement or foreclose the option of a trial. Keeping an open mind, both about the option of mediating and settlement options during mediation, can be key in achieving the best outcome possible in litigation. Even the most aggressive litigation strategies can include mediation.