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Mediation in Litigation

November 2, 2023

Litigation is usually thought of in very adversarial terms. The parties fight in court arguing for their position and there is an identifiable winner and loser. The traditional court setting does not necessarily lend itself to compromise or creative resolutions. However, there is a growing trend in all types of litigation to opt for mediation, either early in the proceeding, or sometimes closer to a trial. Mediation is one method of alternative dispute resolution (ADR) wherein the parties work with a neutral third-party mediator who helps facilitate discussion and settlement between the parties but does not determine who wins the case. In the course of litigation, mediation can be used to resolve some or all issues without the need for a trial. 

Benefits of Mediation

Mediation offers several advantages over litigation in settling disputes. Often, it is faster and less costly because mediators have a lighter caseload than most judges and can hear a case without the delays that occur in court. 

In addition, parties have the opportunity to participate in the case more directly. They may do most of the talking, either to each other or to the mediator, allowing for self-expression without legalese that is not readily available in court. This can help the parties more easily find common ground that allows them to resolve disputes.

Mediation is also more private than court proceedings. Confidentiality allows for information-sharing which can help parties to gain perspective and see issues from the other side.

The parties also have more control and flexibility over the process than exists in litigation. The mediator can work with the parties to set the terms and structure of the mediation to suit their preferences. 

Styles of Mediation

All mediators aren’t the same and the proceedings can vary in format. Mediators can work with all the parties at once or have private sessions with each party individually. Within these sessions, the mediator can use either a facilitative or evaluative style of mediation.

In facilitative mediation, the mediator tries to help the parties reach an agreement and will employ different strategies to do so. The mediator avoids expressing an opinion on the merits of the case and instead focuses on getting the parties to have their say and ultimately agree on a solution that meets both their needs.

In evaluative mediation, the mediator will provide an assessment of the claims of each party. This can be a legal analysis of their position or an opinion on the valuation of the claims. The mediator essentially provides an early neutral evaluation, which may serve as a “reality check” on the parties, encouraging them to find a compromise and avoid the costs and risks of litigation.

Working Effectively with a Mediator

In selecting a mediator, it is essential to consider the style of mediation that suits your case and yours and your opponent’s personality and preferences. Some mediators adhere to only one style of mediation, others are willing to work with the parties to choose the style that is more appropriate for them. The parties should communicate their goals for the mediation up front, share preferences with the mediator about the style of mediation, and consider hybrid approaches that may be beneficial. For example, when working in a group setting with all parties, the mediator could be more facilitative, but in private sessions take an evaluative approach. 

Ultimately, there is no right or wrong way to mediate. The circumstances of your case and your preferences should inform how the mediation should be structured so you are more likely to have a successful mediation.

Talk with a lawyer about incorporating mediation into your litigation. Our attorneys are skilled in representing clients in court and ADR proceedings and can help ensure that your interests are well-represented and protected. Contact us for a consultation.


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