ADR.com estimates that eighty three percent of all mediations result in a resolution of the dispute being mediated. The vast majority of cases, however, are mediated only after months, or sometimes years, of invested time and expense. In some cases, this is necessary due to a need for significant discovery. Many times, however, there is little dispute about the basic facts of the case. In those instances, parties should consider the possible benefits of pre-suit or early mediation. These benefits include the following.
- Cost – Obviously, if a dispute is going to be resolved via mediation, the earlier it is resolved, the less attorney’s fees and costs will be incurred. In a 2008 survey conducted by the Florida Bar, two-thirds of all responding attorneys charged more than $200 per hour with almost forty percent billing at a rate of $250 or more. With governmental budgets tightening even the cost of filing a suit has skyrocketed. As a result, the cost to litigate also continues to grow.
- Confidentiality – Once a lawsuit is filed, parties’ disputes become public knowledge. If a dispute is settled during a pre-suit mediation, however, the entire matter may remain confidential. For example, in a claim of discrimination brought by a former employee against his former employer, once suit is filed, the former employer is often concerned that any indication of a settlement filed with the court will open the floodgates of litigation from every future terminated employee. On the converse side, while federal and state laws prohibit retaliating against an individual for filing a claim of discrimination, individuals who have sued past employers are often concerned that possible new employers will avoid hiring them due to the lawsuit. Accordingly, the former employee’s interests may also be served by the confidentiality of pre-suit mediation.
- Time – Anyone who has even been a party to a lawsuit knows that the process can be extremely time consuming. Time spent meeting with attorneys, responding to discovery, attending depositions takes away from time an individual might be working to earn money or spending with his or her family. In the case of a corporate party, numerous employees may be involved in the litigation process, further decreasing productivity.
- Flexibility of Resolution – As litigation moves forward, parties sometimes become more entrenched in their positions. Accordingly, early in a dispute, there may be more possible avenues of resolution than simply the payment of money by one party to the other. In an employment dispute, perhaps the employer will consider rehiring an individual before possible damages become significant. In a contractual dispute, perhaps the parties can agree to restart work or complete performance of the agreement.
These are just a few of the possible benefits of pre-suit or early mediation that attorneys and clients should consider when disputes arise.