Tis the Season to Consider Mediation of Legal and Business Disputes

Posted Feb 1, 2013

As the holidays approach, themes of peace and harmony resound. For those going into the holiday season and new year with unresolved legal or business disputes, it is an ideal time to consider mediation and alternative dispute resolution. An important question in the life of any dispute is when is the optimum time to engage in mediation or other forms of alternative dispute resolution? Below are several critical stages in the life cycle of a dispute and issues to consider regarding the decision to mediate:

  1. Before a Lawsuit Begins.

When a lawsuit is on the verge of being commenced, emotions are running high, the disputing parties are becoming increasingly entrenched in their positions, and legal arguments and theories are being sharpened. This is a critical time to consider a pre-lawsuit mediation because, at this point, the cost of litigation has not reached a substantial level and the dispute has not yet caused a major distraction to the businesses or people involved. An early settlement may also be beneficial because it avoids the public filing of the lawsuit, thereby keeping the dispute private. However, a common objection to early mediation is that all relevant facts may not be known because no discovery has been conducted.

  1. After the Lawsuit Has Started, But before Summary Judgment Motions Are Filed.

This plateau in the life cycle of the dispute is reached during the discovery process, but before the parties have filed motions for summary judgment in which the court will decide important issues on the legal claims asserted in the case. At this juncture, important facts will have been disclosed in discovery and key witnesses deposed. Because the cost of preparing such motions is substantial, a successful mediation at this stage serves to reduce attorneys’ fees, litigation costs, and personal or business interruption to the parties.

  1. Waiting for the Judge to Decide Summary Judgment Motions.

The parties have made the effort to file motions with the court and the judge’s decision is imminent. Facts have been gathered in discovery, witnesses deposed, and the lawyers have presented forceful arguments to the court on the legal issues. This may be the best time to engage in mediation and work toward settlement because the risk for both sides is at the highest level since the lawsuit began.

  1. Prior to Trial.

Discovery has ended, the judge has ruled on summary judgment motions, and the attorneys are preparing for trial. Many dollars have been paid in attorneys’ fees and the parties are awaiting their day in court. This could be the ideal time for a final attempt to resolve the dispute. Experienced trial attorneys are aware of the unpredictability of trials, even where the finest pre-trial preparation has been conducted. Thus, this is the last chance to find a mutually agreeable solution before the mechanism of the trial takes control of the dispute away from the parties and into the hands of a jury or the court.

Regardless of the timing, Messerli & Kramer’s litigation attorneys are experienced in representing clients in mediation, arbitration, court-ordered settlement conferences, and other alternative dispute resolution forums. Further, litigation attorney George Serdar is a certified mediator, with thirty years of dispute resolution experience. Contact us to discuss resolving your legal or business dispute.

This communication does not constitute legal advice or create an attorney-client relationship. Please consult an attorney if you have questions.

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