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Mediating Business Disputes

by | Sep 20, 2020 | Firm News |

Most business litigation matters will never make it to trial. That is a statistical fact. The vast majority of civil cases will either be settled or dismissed before a trial occurs. Indeed, if every case that were filed had to be tried, the courts would grind to a halt because there simply aren’t enough judges or jurors available to hear all the cases. Because of this, business disputes are often submitted to mediation before they proceed to trial.

A mediation is a private, non-binding process where a neutral mediator attempts to work with both sides to the litigation in an effort to settle their case. Usually, each side pays half the cost of the mediator’s fees. The mediator can be anyone chosen by the parties. Retired judges and attorneys with experience in specialized fields are the most common selections.

A mediation generally consists of a conference with both sides participating. The attorneys and at least one representative for each side will attend. The mediator will usually speak to both sides together before separating each side and discussing settlement with them separately. The entire process is considered confidential and cannot be used in the trial of the case if the mediation is unsuccessful. The premise for mediation is that litigants will often feel more comfortable conceding points and compromising positions with a neutral third party than they would be if they were negotiating directly with each other.

To determine whether to agree to mediate a business dispute, I ask this question: Is there a realistic chance that the case can be settled? If so, then proceeding to mediation is probably a good idea and the real questions are when and where should you mediate. If there is not a realistic chance of settlement, then mediation is probably a waste of time and money. However, as a practitioner I usually learn valuable information at a mediation that I can use at trial if the case does not settle. Sometimes what I learn is factual, sometimes it is strategic. But I rarely leave a mediation without either settling my client’s case or gathering information that will help my client later in the litigation.

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