Archives for November 2022

November 8, 2022 –

While mediation is an effective dispute resolution tool, timing is key and can make or break the success of the process.  At the end of the day, the particularities of a case will determine the right time to mediate.

Because mediation is much cheaper than a full-blown litigation or even discovery proceedings in litigation, early efforts to mediate save money.  But mediating early may not make sense if the parties do not yet have a good handle on the facts and legal issues of the dispute and require more detailed pleadings and fact discovery.  Accordingly, in many cases, it makes sense to postpone mediation until the parties have exchanged basic pleadings, produced documents, and sometimes even taken key depositions.

In other cases, the parties may wait until the filing of a dispositive motion to mediate.  For instance, a defendant may offer mediation after moving for summary judgment.  This is most effective when the motion is strong, enabling the defendant to leverage its motion to encourage mediation.

There may also be “bigger-picture” timing concerns for the parties to take into account.  The parties should be aware of relevant external issues and circumstances, if any, that exist outside of their immediate dispute: an anticipated regulatory announcement, an upcoming financial obligation, or a pending case that addresses the subject matter of the dispute, for example, may militate in favor of an earlier mediation.

Although the right time to mediate can vary, parties should always consider what they know about the opposing side’s position, the parties’ differing perspectives regarding the strength of their case based on evidence collected in discovery, and external business or reputational factors that may militate in favor of a prompt mediation.

CASTAYBERT PLLC has extensive experience representing clients and participating as an effective advocate for clients in commercial mediation. To see how CASTAYBERT PLLC can assist you in mediation, click here.

November 2, 2022 –

Today, contracts frequently require that the parties seek to mediate any disputes before commencing a litigation or arbitration.  But even when the parties are not contractually required to mediate, a litigant or potential litigant should consider the possibility of mediation, if not at inception, then during the litigation or arbitration proceedings before the parties incur significant legal fees from a trial or hearing.

The parties are of course always free to try to negotiate a settlement directly or with and through their lawyers.  Often, however, the lawyers on both sides agree to recommend mediation to their respective clients when prior efforts at negotiation have reached a procedural or substantive impasse or are unnecessarily prolonged.  The agreement to engage in non-binding, confidential mediation, then allows the parties to decide on a time and place to have all decision-makers meet to negotiate a settlement on neutral territory with the guidance of the agreed-upon mediator.

An experienced mediator is a champion for settlement, helping the parties identify the issues important to each side and the opportunities for a reasonable negotiated outcome to avoid further litigation.  The mediation process enables the parties to discuss their concerns in a confidential setting where everyone’s voice can be heard.  The mediator acts as a catalyst for the parties by guiding and moderating their communication so that they may exchange information, pinpoint and confront outstanding issues, and identify their respective interests and the possible trade-offs for resolution and settlement. The mediator can sometimes act as an “agent of reality” for both parties to see the benefits of a negotiated settlement instead of continued litigation.  Settlements reached in mediation have a high rate of compliance because, with the guidance of the mediator in the mediation process, the parties develop and agree to the terms of the resolution themselves.

In short, mediation is typically faster, cheaper, and less stressful than litigation, allows the parties to concentrate on settlement negotiations, and enables the parties to keep their dispute and its settlement confidential, minimizing the potential for adverse publicity.  Even when the mediation does not lead to a settlement, it allows the parties to hear about the strengths and weaknesses of their case from a neutral third party, learn more about the other side and what is needed to reach a resolution, and does not leave them wondering whether the dispute could have been resolved before escalation.  Often, the information learned during the mediation allows the parties to narrow their differences, making eventual settlement much more likely down the road.

Read more about the potential benefits of mediation in Edna Sussman’s article, The Reasons for Mediation’s Bright Future.