Early Mediation Can Save Money, Emotional Burdens and Time
Thomas W. Hartmann
The Hartmann Law Firm LLC
TheHartmannLawFirm.com; [email protected]; 908 769 6888
Litigation is Expensive. Litigation costs can be astronomical. Well before a case gets to trial, money can be chewed up with discovery in the forms of interrogatories, document requests, subpoenas of third parties, disputes related to discovery, motions, and most costly of all – depositions. With these costs comes the extensive time associated with litigation. A 300 day initial discovery deadline is often the standard and additional time can be obtained relatively easily.
With all of this expense and time, the litigants are still burdened daily by the emotional weight of the litigation itself and the burden of an unresolved controversy.
Early Intervention May Solve the Problem. In this light and depending upon the case, it is worth considering whether early mediation can resolve the matter. Mediation involves the use of an independent neutral who can consider the parties' positions and try to bring them to a mutually acceptable solution.
The Right Mediator. Mediation is not a panacea, and timing is important. The parties must find a mediator who is patient enough to listen and tough enough to be clear with both sides about the risks that lie ahead. My practice is to try to rely on a retired judge who has shown these traits on the bench.
Timing. Mediation should not begin too early. It is important that the parties know and disclose the core issues and the true damages associated with the case. Generalities usually have little value if the parties truly want to solve the matter. This just wastes time, leads to more frustration and actually hinders the resolution process. Thus, the parties must gather and share the key documents that support their cases early. A written mediation statement by each party helps organize thoughts and evidence and streamlines the process.
Mediation Costs. Mediation is not free except in those jurisdictions that use volunteers. Most retired judges charge in the range of $400 to $600 per hour, which is split evenly between the parties. While this might seem expensive, as it is on top of existing legal fees, a successful resolution would save countless litigation costs.
The Right Mindset. Finally, mediation only works if both sides really want to solve the problem and find a workable compromise. Seldom will either side get everything it demands. More often, the parties must exhibit a mindset that involves listening to mediator, who is assessing the strengths and weaknesses of the parties, and being willing to temper demands to solutions that are real rather than theoretical.