Timing is Everything

It is the rare lawsuit that progresses quickly through discovery to trial and verdict any more.  Most often, cases end up embroiled in extensive depositions and document production or languish on a judge’s overcrowded docket.  In the meantime, litigants on both sides are held up by a dispute that is both inconvenient and expensive.  And despite the confidence the lawyers have in the strength of their legal theories, everyone faces the real potential that when it’s all over, the whole affair could leave them with less than they had when it started.

Enter mediation.  Compared to the cost of even one deposition, it is a hands-down bargain for both sides.  And it’s a risk-free bargain, at that. Both sides are charged with good faith when they come to the table, but neither is obligated to accept its opponent’s offer.  The process is fully in the hands of the parties, who may walk away at any time and take up where they left off in court.

Of course, in many cases it is necessary to complete a measure of discovery before engaging in mediation.  Without sufficient fact development and legal research, lawyers have limited ability to accurately evaluate the merits of a lawsuit, particularly damages.  Once they have gathered adequate information, the time is ripe for meaningful negotiation.

In the course of a day, or just a fraction of a day, a mediator can direct the settlement discussion toward resolution that might take weeks or months for the parties to work out on their own if at all.  Having all the litigants and their representatives in the same place, fully focused on the process of negotiation, gives everyone involved the opportunity to distill months and even years of litigation down to a single day, and if successful, everyone goes home a winner in some sense.

I have yet to see the case that could not benefit from alternative dispute resolution.  Mediation should be included in every attorney’s litigation plan as an opportunity to get to the finish line sooner rather than later.