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Pre-Litigation Mediation: Benefits, Caveats, and How To Prepare

For parties engaged in a legal dispute, the prospect of resolving a dispute outside of the traditional legal process may sound foreign. Nonetheless, an increasingly small percentage of civil cases proceed to trial, the vast majority resolving through formal or informal mediation.

Mediation offers a neutral way for parties to discuss their disputes. It is a confidential, non-adversarial process that puts parties in control of their issues, allowing them to craft their own creative resolutions. Although it may be court-ordered, parties can also elect to mediate a case on their own terms. In these cases, parties can choose to mediate a case before initiating the formal litigation process.

Why Mediate Before Filing?

Given the costs of litigating a civil case, pre-litigation mediation can result in substantial savings in both attorneys’ fees and time. In fact, pre-litigation mediations are becoming increasingly widespread throughout our State for these very reasons, among others.

Pre-litigation mediation is, quite simply, an attempt to resolve a case before initiating the formal legal process. An option that protects parties’ privacy interests (once filed, a complaint takes parties’ dispute to the public arena by making the facts of the case an official court record) and can spare individuals the financial and emotional expense of the adversarial process, many wonder: Is it worth taking a crack at it before we dig in our heels? After all, mediation is inevitable once you are involved in (most) civil superior court cases, so should you attempt it before delving deeper and deeper into your position?

As always, the answer is simple: It depends. Nonetheless, though, pre-litigation mediation does offer tremendous advantages. Here are a few.

Preserving Your Resources

Litigation is a costly endeavor both financially and temporally. Frequently, parties find themselves a year into a lawsuit – and knee-deep in attorneys’ fees – before they feel they have made meaningful progress. Even the process of filing initial pleadings can take several months, particularly since each party is entitled to extensions. Attempting to mediate a case before expending these resources is a worthwhile endeavor, offering a chance to resolve a dispute expeditiously and with an eye to cost-effectiveness.

Caveat: Keep in mind, however, that mediating a case before filing a lawsuit necessarily means you will show your hand early. Speak with your attorney about the advantages and disadvantages of taking this non-confrontational approach. In some cases, your attorney may recommend filing a lawsuit, particularly if the opposing party has proven difficult and uncompromising.

Dodging Uncertainties

Each case presents uncertainties, regardless of the issues. While our legal system includes safeguards – like the jury selection process and a judicial code of conduct that requires impartiality – to preserve fairness and justice, leaving resolution to a judge or jury necessarily means facing inherent biases, opinions, and beliefs. Mediating a case outside of the adversarial process affords parties more control over the outcome, allowing them to fashion their own creative solutions. Similarly, parties can value a case for themselves rather than relying on expert witnesses to apply uncertain (and occasionally controversial) methodologies.

Protecting Confidential Information

While mediation inevitably demands showing your hand, you can nonetheless keep your dispute private rather than exposing it to public scrutiny. This may be particularly advantageous if you have a special interest in keeping your dispute under the radar.

Keeping Relationships Intact

The litigation process is inherently antagonistic and as such, it is known for straining personal and professional relationships that are already hanging by a thread. This is only exacerbated as litigation progresses and both parties increasingly find themselves with skin in the game. Attempting to resolve a dispute before the parties invest substantial amounts of time and energy can help them maintain an amicable – or at least civil – relationship.

Preparing for Pre-Litigation Mediation

Before you proceed with mediating a case pre-litigation, there are certain steps your attorney may encourage you to take.

·  Figure out what is at stake: First and foremost, make sure you have a firm understanding of how much money is at issue. Having a clear sense of what would make you whole (if you are a plaintiff) or what it would take to clear up any claims leveled at you (if you are a defendant) will position you to more effectively negotiate. It will also help you confidently accept – or reject – settlement proposals that come your way.

·  Decide what else you would accept: In some cases, more than just monetary compensation may clear up a dispute. For instance, do you want the other party to take a certain action (or refrain from certain behaviors)? If so, make sure you understand what, if any, measures can patch up your dispute so that the mediator understands your position.

·  Do not underestimate the other party: Before entering into mediation, it is vital to remember that the other party may not necessarily have your best interests in mind. Do not deceive yourself into thinking that your matter will be neatly and expeditiously resolved. As such, make sure that you mentally keep the door to litigation open, should the mediation prove unsuccessful or inconclusive.

Experienced North Carolina Mediators

Pre-litigation mediation is not always an option. Your opponent may not agree to it, your attorney may decide the risks outweigh the potential benefits, and your case may ultimately be best suited to resolution through litigation. However, when it does prove to be the right option, it can be a highly effective way to resolve disputes. As always, though, for any mediation to be successful, each party must have a vested interest in resolving the issues between them, and to believe that mediation is a valuable way to do so.

If you are on the brink of litigation, give us a call. We proudly serve clients across North Carolina and help them resolve their disputes through DNC certified mediation and other forms of alternative dispute resolution. To speak with our mediation coordinator, Cynda Liebers, call (919) 278-7453 or send an email to cliebers@sgandm.com.

This article does not establish an attorney-client relationship and must not be construed as legal advice.