Give Early Mediation a Chance
Thomas W. Hartmann
The Hartmann Law Firm LLC
TheHartmannLawFirm.com; [email protected];
908 769 6888; 203 451 6919 (cell)
Why are you suing? Nearly 99% of all litigation cases brought in New Jersey are settled or dismissed. Just about 1% are tried. This should make you wonder about the value -- the business value -- of lawsuits. Yes, there may be a dispute. It may be long-standing. It may be frustrating. You may feel cheated. But, is litigation to the right answer?
Consider the costs. They are enormous. You may think you are fighting over principle, but once you get a few legal bills, the principle will fade in significance a bit. By that time you are stuck in the litigation process with deadlines for document production, responses to interrogatories, depositions, motions, hearings, status conferences and so on. A Rand study indicates that as much as 80% of litigation costs are trapped in the discovery process. Avoiding that by early and careful review of the case can save money.
Consider the time. Litigation takes a long time. Even if you think you are going to move fast on your side, the other side very often requests and will get time extensions. Relatively “simple” cases usually last years.
Consider the aggravation. If you are running a business or raising a family, you will be disturbed by the litigation process. You will be required to find documents, produce documents, respond to requests for information, and remember the circumstances of the dispute over and over. You wake up with it; you go to sleep with it.
Early mediation is relatively risk free. Why not at least try early mediation? Emotionally, you may still want to strike back at the adversary. You may think you do not have enough information, even though if you go through full discovery you may get boxes and boxes of documents with little bearing on the case – though you will pay attorneys to review it all.
You have little to lose with the neutral mediation process. The costs of the mediator are split between the parties. Discovery is limited to what is absolutely needed to expose the problem. You control the process, not a judge, not a jury of random people you do not know, and not legal rules that order you around. You and your counsel are forced to meet with the other side, as opposed to the litigation process which allows fighting by paper, emails, and remote court filings, which seldom leads to a solution. You may be able to solve your own problem with a neutral mediator without waiting years for satisfaction. The process is confidential.
Put a Mediation Clause in Agreements. Many business contracts and international operating agreements include obligations to have a pre-litigation mediation session before litigation is brought. If it does not work, litigation is always available. So, why not give it a chance?