Business Litigation: A Mediation Primer

Mediation in business litigation is an attempt by the parties to settle their case through the use of a trained facilitator. Mediation differs from arbitration and trial in that there is no formal examination of witnesses or presentation of evidence. The mediator does not make a ‘decision’ at the end of the session. Instead mediation focuses on getting the parties to mutually agree on a resolution that both or all sides can live with.

The most important thing to remember with regards to mediation is to do it. In other words make sure that your attorney arranges a mediation. For all of the money and time spent on litigation, there is no excuse for not spending at least half a day trying to talk settlement. Don’t forget that some attorneys are more interested in litigation and all of the fees that it brings the attorney then in resolving the case in the most efficient way. Your goal is not to be in litigation. Your goal is to resolve your case on acceptable grounds.

Next make sure that your attorney prepares a thorough brief that addresses the factual history, the legal issues and any obstacles to settlement. Many attorneys live with a lawsuit for so long that they assume everyone knows the story and the players. Read your mediation brief as if you have never heard of the parties or the story–do you understand it? Also make sure to include any relevant but non-legal information that may help the mediator–is this lawsuit just part of a history of animosity or related to a bigger dispute?

The attorney and the client should also discuss, amongst themselves, the weaknesses of the case. Clients should have a realistic view of their case before the mediation and the attorney should advise them as to whether this is a case that must be settled or not.

Clients often tell their attorneys that they do not want to have to speak at a mediation. A good mediator, however, will put the parties at ease and let them tell their side of the story. Don’t underestimate how important it is for the parties to be heard. At mediation be prepared for long periods of waiting. The mediator will be engaged in shuttle diplomacy, going back and forth between different rooms, hearing the various stories.

The goal is to reach a settlement at mediation. The litigation attorneys should therefore be prepared to document a settlement at mediation, including all of the items they want covered. Attorneys should not assume that they can add additional terms later in a more formal document. Whatever gets signed at the mediation is enforceable on its terms as written. Your attorney should bring an outline or draft of the language that he or she wants to see included in the agreement necessary to protect your interests.

Mediation is one of the most important tools in business litigation.