Mediate, Not Litigate

Often, the best time to resolve disputes is before the parties engage in litigation.

Echo A. Reynolds

Echo A. Reynolds

September 20, 2023 03:43 PM

Your client just received a demand letter, or conversely your client wants to file a lawsuit against an adverse party. Often, the best time to resolve disputes is before the parties engage in litigation. Whether representing a plaintiff or a defendant, the benefits of participating in pre-litigation mediation are abundant. There are five key reasons why attorneys should urge clients, and opposing counsel, to attempt to settle matters before proceeding with litigation:

1. Litigation Is Expensive

The cost of litigating a civil matter through trial often exceeds the amount in controversy. For plaintiffs who cannot afford the expense of litigation, proposing mediation prior to filing a lawsuit offers an opportunity for resolution at a fraction of the cost of litigating their claim. For parties defending against claims, the benefits of proposing mediation prior to the adverse party filing suit affords the opportunity to resolve the dispute without incurring legal fees, discovery costs, and potential expert fees. The cost of mediation is minor compared to prosecuting or defending a lawsuit.

2. The Outcome of Litigation is Never Certain

Although clients may want their day in court, or may be litigating out of anger, spite, or the “principle of the matter,” an attorney’s role as counselor includes dissuading clients from litigating on principle or emotion. Whether a jury or bench trial, issues such as implicit bias, stereotypes, and objectivity should be considered. Only death and taxes, not litigation, are certain.

3. Litigation is Time-Consuming

Whether representing an individual or an institutional client, the time your client spends tending to a lawsuit takes away from their time working, growing their business, or participating in other life activities. In the COVID-era, many courts suspended civil trials and jury trials indefinitely, and are only now beginning to empanel juries in limited cases. Litigation has never been a quick process to resolving disputes. However, the pandemic has increased exponentially the time litigation takes as the courts face limitations including social distancing, closures, and decreased jury pools.

4. Early Resolution Provides Closure

Mediation is not a win/lose game. Mediation provides the opportunity for all parties to put an end to their disputes, and likely no party will walk away happy. However, closure brings contentment. Protracted litigation may eventually provide a “win” but at what cost? Attempting settlement of matters prior to litigation allows the parties to focus on resolution rather than the fight.

5. Mediation is Confidential

Mediation provides a confidential process for adverse parties to work towards dispute resolution. Although not every dispute is ripe for pre-litigation mediation, a large number of disputes can be resolved by coming to the negotiating table with the help of a neutral third party. One of the primary benefits of mediating before litigating is that the parties are willingly participating in good faith, under the umbrella of confidentiality. Most individuals and businesses do not want to “air their dirty laundry” publicly, and mediation provides a procedure to confidentially resolve their disputes.

Encouraging clients to engage in pre-litigation mediation has benefits for clients, relationships that attorneys have with their clients, and allows clients to return to their pre-litigation life more quickly.

Trending Articles

How Palworld Is Testing the Limits of Nintendo’s Legal Power

by Gregory Sirico

Many are calling the new game Palworld “Pokémon GO with guns,” noting the games striking similarities. Experts speculate how Nintendo could take legal action.

Animated figures with guns stand on top of creatures

Announcing the 2023 The Best Lawyers in America Honorees

by Best Lawyers

Only the top 5.3% of all practicing lawyers in the U.S. were selected by their peers for inclusion in the 29th edition of The Best Lawyers in America®.

Gold strings and dots connecting to form US map

The U.S. Best Lawyers Voting Season Is Open

by Best Lawyers

The voting season for the 31st edition of The Best Lawyers in America® and the 5th edition of Best Lawyers: Ones to Watch® in America is officially underway, and we are offering some helpful advice to this year’s voters.

Golden figures of people standing on blue surface connected by white lines

Announcing the 2022 Best Lawyers® in the United States

by Best Lawyers

The results include an elite field of top lawyers listed in the 28th Edition of The Best Lawyers in America® and in the 2nd Edition of Best Lawyers: Ones to Watch in America for 2022.

2022 Best Lawyers Listings for United States

How To Find A Pro Bono Lawyer

by Best Lawyers

Best Lawyers dives into the vital role pro bono lawyers play in ensuring access to justice for all and the transformative impact they have on communities.

Hands joined around a table with phone, paper, pen and glasses

2021 Best Lawyers: The Global Issue

by Best Lawyers

The 2021 Global Issue features top legal talent from the most recent editions of Best Lawyers and Best Lawyers: Ones to Watch worldwide.

2021 Best Lawyers: The Global Issue

What the Courts Say About Recording in the Classroom

by Christina Henagen Peer and Peter Zawadski

Students and parents are increasingly asking to use audio devices to record what's being said in the classroom. But is it legal? A recent ruling offer gives the answer to a question confusing parents and administrators alike.

Is It Legal for Students to Record Teachers?

Best Lawyers: Ones to Watch in America for 2023

by Best Lawyers

The third edition of Best Lawyers: Ones to Watch in America™ highlights the legal talent of lawyers who have been in practice less than 10 years.

Three arrows made of lines and dots on blue background

The Best Lawyers in Australia™ 2024 Launch

by Best Lawyers

Best Lawyers is excited to announce The Best Lawyers in Australia™ for 2023, including the top lawyers and law firms from Australia.

Australian Parliament beside water at sunset

The Upcycle Conundrum

by Karen Kreider Gaunt

Laudable or litigious? What you need to know about potential copyright and trademark infringement when repurposing products.

Repurposed Products and Copyright Infringemen

Inflation Escalation

by Ashley S. Wagner

Inflation and rising costs are at the forefront of everyone’s mind as we enter 2023. The current volatile market makes it more important than ever to understand the rent escalation clauses in current and future commercial lease agreements.

Suited figure in front of rising market and inflated balloon

Wage and Overtime Laws for Truck Drivers

by Greg Mansell

For truck drivers nationwide, underpayment and overtime violations are just the beginning of a long list of problems. Below we explore the wages you are entitled to but may not be receiving.

Truck Driver Wage and Overtime Laws in the US

A Celebration of Excellence: The Best Lawyers in Canada 2024 Awards

by Best Lawyers

As we embark on the 18th edition of The Best Lawyers in Canada™, we are excited to highlight excellence and top legal talent across the country.

Abstract image of red and white Canada flag in triangles

Announcing The Best Lawyers in South Africa™ 2024

by Best Lawyers

Best Lawyers is excited to announce the landmark 15th edition of The Best Lawyers in South Africa™ for 2024, including the exclusive "Law Firm of the Year" awards.

Sky view of South Africa town and waterways

Best Lawyers Voting Is Now Open

by Best Lawyers

Voting has begun in several countries across the globe, including the United States, the United Kingdom and Europe. Below we offer dates, details and answers to voting-related questions to assist with the voting process.

Hands holding smartphone with five stars above phone

8 Different Types of Criminal Defenses in Law

by Best Lawyers

Learn about the different types of criminal defenses available in law, including innocence, self-defense, insanity and more. Protect your rights today.

Silver handcuffs laying on finger printed papers