Mediation

One of the most significant misconceptions concerning mediation is that its sole efficacy, whether late stage or early in the litigation process, is a resolution of the entire dispute between the parties. In reality, its efficacy can be far broader. For example, mediation has been effective in:

  • Resolving or narrowing discovery disputes
  • Assisting attorneys with client control issues
  • Assisting parties in realistically assessing their legal or factual positions
  • Assisting parties in a closely held business dispute to establish a stand-still agreement covering the management and operation of the enterprise pending the complete resolution of the dispute
  • Assisting parties in establishing a staged and proportionate litigation and ADR plan that is appropriate for the case
  • Narrowing the claims in dispute and focusing the litigation
  • Assisting pro se litigants interested in pursuing an early resolution or establishing a litigation plan that will lead to ADR at the earliest practicable date

Confidentiality is critically important to the effectiveness of the process and the court is only provided with the approved SCAO report following the conclusion of the mediation event

Indications for consideration:

  • Early mediation may help parties resolve any number of pre-trial matters, for example, contested discovery matters, as discussed in the “Meet and Confer” section.
  • Later mediation can take place where the parties have engaged in sufficient discovery to pursue a resolution of the entire dispute. It is typically unnecessary for the parties to engage in all discovery that would be needed to prepare for a trial before they can engage in a meaningful mediation.
  • Based on SCAO studies demonstrating that higher disposition rates are achieved through mediation than through case evaluation, mediation should almost always occur prior to case evaluation.

Timing

The Initial Case Conference can include a discussion about identifying a mediator who can be called upon to perform any of the functions of mediation throughout the life of the case.