One well known mantra of mediators is that it is always better to mediate prior to filing a lawsuit  than to incur the time and expense lawsuits entail. Most lawyers will tell you that litigation is the most expensive and least efficient way of resolving a matter; yet, they will typically file a lawsuit and then mediate!

Well- it happened. I actually mediated a matter prior to it becoming a lawsuit. The potential defendant attorney was astute enough to suggest an early mediation to the potential plaintiff’s counsel to resolve a matter before it got out of hand, and plaintiff’s counsel was wise enough to agree. And, it worked. The matter settled.

The matter involved the alleged employment discrimination/wrongful termination of an employee by a small company. The downside to conducting the mediation so early was that the employer allegedly had very little information about the alleged circumstances surrounding the alleged wrongful actions. The first it knew of it was when plaintiff’s counsel wrote a demand letter. And while defense counsel requested more information informally, none was forthcoming. So, at the mediation, the defense was operating on a steep learning curve, and making phone calls to different persons in management to verify information.  But, at the same time, defense counsel was experienced enough to provide the employer with educated opinions of what may have happened, what may not have happened and how all of it would probably appear to a jury.

What the defense soon realized was that while the alleged facts of what supposedly happened were important, in the end, it all came down to how little money was plaintiff willing to accept (and accordingly, how much money was the employer willing to pay). And this is where the economic and other realities of litigation came into play. Presumably (as it occurred outside of my presence), defense counsel discussed the economic and other realities of litigation with her client- how much the fees and costs would be just to get to trial and how much of management’s time would be consumed by the litigation. And, chances are, the parties would find themselves at mediation much later and the defendant would end up paying something to resolve the matter. Thus, the issue could be framed as paying a little now or paying a lot more later (since 95% or more of all cases end up settling.)

While this is a harsh reality, the employer was wise enough not to stand on principle by announcing that it would rather spend $250,000 (or some other extreme amount) on attorneys’ fees and costs than pay 1 cent to the potential plaintiff. Rather, it understood and unhappily accepted the realities of the situation.

After many hours the matter settled and with it, a very costly and time-consuming litigation was avoided.

So- even though a dispute may be in its infancy and even though you believe you may not have “all the facts” or enough of them to make an “informed” decision, I urge you to suggest an early mediation anyway. Other than your time and the mediator’s fees, you have little to lose. And… you may just end up settling what otherwise has the potential for becoming a very ugly, lengthy, time consuming piece of litigation.

…. Just something to think about.


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