In modern business litigation, mediation has become very common. By contrast, when I first began to work in the industry, mediations were rare. Most cases did not have a settlement conference of any kind until they were called for a pretrial conference by the trial judge or assignment judge. This usually would not occur until all the pretrial preparation had been completed. This approach led to “courthouse steps” resolutions.
Now, on the other hand, many cases are selected for early mediation. Others are submitted to early mediation by agreement of the parties. This has led to the possibility of a resolution much earlier in the litigation process.
So what are the benefits of mediation? First and foremost, it provides an opportunity for the litigants to end the dispute before they spend additional funds to prepare for trial. Second, resolutions give the litigants a chance to avoid the exposure of a loss at trial. Third, a mediation will generally allow the litigants to keep their dispute confidential. Fourth, even when the mediation is unsuccessful, the process is a good one for getting your case organized and evaluating its strengths and weaknesses.