The importance of early mediation in resolving disputes

By Mona R. Shah

Mona R. Shah, Lecturer in Law

Mediation. It’s a term as familiar in California’s legal system as litigation. It’s a tool that has proven its importance time and again in many legal disputes and dispute resolutions. In California, parties have sought mediation in over 60 percent of litigated matters. In addition, some courts now require at least one attempt by the parties to try mediation or some form of alternative dispute resolution before parties can be allowed to take up the resources of an already bogged down judicial system. Cases that were headed to trial within a year or two of a case filing are now not even seeing trial dates set for three to four years. Our judicial system is at capacity, and mediation has been an effective tool in resolving issues, or even full-on cases, before lengthy trials start. In all honestly, it has helped an already strained state judiciary in one of the most litigious states in the country.

Litigation is expensive. Attorneys’ fees, costs, time away from work, experts, etc. add up, and the cost for litigation rises exponentially as one gets closer to trial. Litigation, for many individuals and even businesses, is a luxury. Even if the dispute has merit, the cost of litigating a matter to trial has become a huge deterrent.

Mediation, while less expensive than litigation, isn’t free either. In cases where mediations take place, parties can spend thousands of dollars on discovery, motions and hearings even before they get to a consensus to start the mediation process. While resolving cases prior to going to trial has proven to be cost effective, parties are still spending huge sums of money to get to that point.

So, the question becomes: what can we do to more effectively use mediation as a cost-saving tool? The answer: commit to early mediation in legal disputes.

Parties have traditionally waited to start the mediation process until the majority of paper and testimony investigation has been completed. While this has its benefits, there are ways to circumvent this formal process. Parties should commit to mediation even prior to filing of the complaint. To make it as effective as possible, provide limited discovery with the exchange of mediation briefs. In early mediation cases, parties should provide witness statements in the form of declarations and documentary evidence. Admittedly, it’s not as complete or thorough as formal discovery, but in many cases (not all), this exchange of initial information is likely enough for meaningful attempts at resolution. This information, coupled with the desire to resolve the dispute without litigation cost, can be an effective motivator to settle matters.

This, of course, requires some ‘out-of-box’ thinking. Traditionally, parties are not used to being vulnerable or showing their weaknesses so early in a matter. But, maybe that’s okay. This is not a solution to all litigated matters, but for smaller disputes, this form of thinking and use of alternative dispute resolution (ADR) tools can save massive amounts of money and time for clients and can take some of the pressure off our court systems. More importantly, however, this way of thinking can provide access to dispute resolution classes or ADR programs to individuals and businesses that may not have the luxury of litigating matters.

About the Author:
Mona R. Shah teaches Legal Profession at USC Gould School of Law. Shah specializes in employment, real estate, personal injury, construction defect, business and commercial litigation, and complex and class action litigation.