IS IT EVER TOO SOON TO MEDIATE YOUR CASE?
Mediate early and often is a money-saving and time saving concept which should be considered by many. I just heard that one Ventura County trial judge has 800 civil cases on his docket. Even if only ten percent of those cases went to trial, that would be eighty trials. That could take two years of trials going every single day. Your trial isn’t going to start until some day in 2026, if you are lucky. There must be a better way.
You have a dispute or a claim with value. You are unable to resolve it informally. You hire a lawyer to advocate for you and try to resolve your dispute. The agony of litigation starts. The costs start to accrue. The legal fees come at you every single month. When will it end? Normally, the answer is at trial. But the first available trial date is over two years away. Your company could be bankrupt by then. Your lawyer says there is a chance that you could lose at trial. If you want to win, the lawyer tells you that he has to prepare. He needs to hire an expert witness. He needs more money for the expert. He needs graphic evidentiary displays. He needs a “tech guy” for the trial. Just the depositions are going to cost thousands of dollars. How do you get out of this mess?
If the parties are willing, mediation can be done at any time during a dispute. It can even be done BEFORE a lawsuit is filed. You know what your claim is. The other side knows what their claim is. Do both sides have to spend thousands of dollars on litigation so that we can get no further ahead than we were when we started? No, they don’t. Cases can be settled at any stage of a dispute. The problem is that sometimes, in the early stages of a dispute, one or more of the parties may not be “ready” to face to begin meaningful settlement negotiations.
Remember, there is a winner and a loser in every fight. Who the winner is depends on the position of the participants during the dispute. Do you win by saving $30,000 in legal fees? Do you win by not having to waste a week in trial? What are you really arguing about and what is your claim really worth in today’s dollars? Is there merit to the position on the other side? Is it cost effective to go to trial? How do we find an honest answer to these questions?
Many mediators will give a client a written evaluation of their estimate of the value of a claim. Of course, this takes into account that all of the mediator’s information may be coming from only one claimant. Nonetheless, if you and/or your lawyer are forthright with the mediator regarding the facts surrounding your claim, you may be able to figure out what your claim is worth before you start spending countless dollars on litigation.
How do I get the other side to the table? Bringing the parties together for a mediation can sometimes be challenging. A judge can order the parties to participate in alternate dispute resolution (ADR). One of the parties can suggest it. Some contracts require ADR as a means to settle disputes. Some people are just smart enough to understand it is often a better way to go. But when is the best time to go there?
Early mediation saves the most money and time. If the issues surrounding a claim are clear, then the road to mediation may be equally clear. Sometimes, there are questions about the value of a claim, proving up a claim, or potential defenses to a claim. In these cases, “discovery” in civil litigation may be helpful in evaluating a claim. Often, time helps to parse out some of these potential issues of valuation. In this case, maybe it would be helpful to pursue litigation through the discovery stage before settlement talks can be meaningful.
In this case, once discovery is complete, propose a mediation to the other side. Invite them to offer up suggestions for a mediator they like. Is cost an issue? There are several options for lower cost mediator. Good mediators don’t have to come at cost of $9,000 per day. After all, I don’t need my mediator to buy me lunch or have an office in Century City. I need him or her to know the value of my case, to hear what my client has to say and to bring the parties together to reach a resolution.
The keys to a successful mediation are:
- Getting the settlement process started.
- Coming to the mediation with a desire for resolution.
- Realizing the value of resolving the claim
Actually, settling the claim comes together with the help of a skilled mediator, only once these three points all come together. First, we have to begin the settlement process. Principles to the dispute have to agree to come to the table to try to resolve their claims. This can be informally or formally. It is often best when spearheaded by a trained problem solver.
Parties have to want to resolve their claims. They could be tired of paying their lawyers. They could be tired of fighting. They could be scared of their prospects at trial. They could be running out of money. Whatever the reason, if the parties are desirous of resolution, then they are already on their way to resolving their dispute.
Sometimes just being done with a dispute has financial and mental benefits. If you don’t have to pay legal fees anymore, what’s that worth? If you can start worrying about making money and stop worrying about a pending claim, what’s that worth? Throwing good money after bad is never a prudent business decision. Cutting losses and moving forward with good business practices is a better business plan. Thus, the sooner we begin the process to resolve our disputes, the sooner we cut out the cancers eating away at our business profits or the value of our claim and move on toward healthy profits and case resolution.
We all know that in life and in business, disputes happen. The key to overcoming these setbacks is resolving them early and moving on. Not every dispute can be or will be resolved through mediation. Not every resolution will make every party happy. Acceptable losses and expenses are part of business. A successful dispute resolution protocol helps to keep the balance sheet in order. Resolving claims helps to keep the minds of the participants at ease so that they can move forward with their lives and obligations.
Are tired of throwing good money after bad? Do you have a claim or dispute in California which you would like to resolve? It’s never too soon to think about mediation.
Certified Mediator/Attorney Jeffrey Vallens
(818) 783-5700 or email me: vallenslaw@yahoo.com