Saturday, April 5, 2008

To Every Thing There Is a Season

Saving the expense of trial preparation is one good reason to settle civil litigation. It does not always follow, however, that more money can be saved when mediation is scheduled early in the process – before suit or soon thereafter. This is because civil litigation settles when both sides are on the same page regarding value. To reach that stage, participants need to have a "feel" for the other side’s case for both liability and damages, and how they are likely to be presented to (and perceived by) a jury. And where there is an emotional component, the parties’ readiness (or lack thereof) to put matters behind them must also be factored into the equation.

Normally, it takes time and effort to reach the stage where enough is known about the facts and the law so that mediation is likely to be fruitful. In civil litigation, this usually means that the following should be accomplished before mediation, either formally through the discovery process, or informally by agreement:
  • Exchange of all documents (e.g., medical records) pertinent to the litigation;
  • Expert disclosures, if issues are likely to turn on expert opinion;
  • Depositions of the parties; and
  • Identification of legal and factual issues likely to be dispositive.
This is not to say that the participants have to act like they are on the same page, or even know for sure whether they are. After all, mediation’s main purpose is to answer that very question. Having the same feel for value does not mean that everybody has to know what the ultimate result will be, but only that they all have a good idea of the risks that will be run if they let twelve strangers decide their case.

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