Early Mediation: A Magic Bullet? -

More than 90 percent of the cases in Superior Court eventually settle before or during trial. In the majority, counsel are content to let discovery and dispositive motions play out; they do not focus on settlement until a trial date is imminent. But in some cases, a client may tell his or her counsel in confidence that he or she wants or needs an early resolution of the case. Clients have many reasons for wanting a speedy end to a lawsuit, such as the potential cost of the litigation, a possible merger or sale, bad publicity, business disruption and damage to commercial relationships.

When given this confidential instruction by the client, an attorney can bring about an early resolution of the case through mediation if the other side is already willing or if the attorney can convince opposing counsel to give it a try. Mediation is less costly and quicker than litigation, it is confidential and in the vast majority of cases it results in a settlement. It allows the parties to put the dispute behind them and to avoid an expensive and protracted trial. It may also minimize the anguish of an adverse outcome. As a bonus, even if mediation does not lead to a final resolution of the case, it offers perspective to both sides about the case and prepares them for trial. It may also lay the groundwork for a potential pretrial resolution of the case.