PROS AND CONS OF EARLY MEDIATION
Mediation is often an effective, relatively inexpensive and time-saving method of resolving a dispute. Not only does it save on litigation costs, but it also may allow parties to avoid a public fight and keep much, if not all, of a disagreement confidential.
Mediation can occur at various stages of litigation, including before a suit is even filed, before the parties engage in costly discovery, prior to the summary judgment briefing, shortly before a case is set for trial or even the week that the trial is set to begin. Attorneys often note that mediations are most successful when a trial date is looming and both parties are starting to feel the emotional and financial pressures of preparing for that trial. But mediations can be successful at all stages of a dispute.
Here, we discuss the benefits of early mediation, which we define to include both pre-litigation mediation and mediation prior to significant discovery, and the circumstances in which early mediation may not be effective.
Let us start with the benefits. The number one benefit of early mediation is that it can prevent a party from incurring significant litigation costs. Litigation is expensive, and not just in dollars and cents. One also must factor in the time and energy that parties spend engaging in discovery, the distractions from day-to-day management of a company and the emotional toll of sitting for a deposition or testifying at trial. If there is a possibility of settling a case before incurring this expense, why not explore it?
Jan-Mar 2020 issue
Skadden, Arps, Slate, Meagher & Flom LLP