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Mediate, Not Litigate

Categories: Insurance Litigation, Litigation, Article

Your client just received a demand letter, or conversely your client wants to file a lawsuit against an adverse party. Often, the best time to resolve disputes is before the parties engage in litigation. Whether representing a plaintiff or a defendant, the benefits of participating in pre-litigation mediation are abundant. There are five key reasons why attorneys should urge clients, and opposing counsel, to attempt to settle matters before proceeding with litigation:

1. Litigation Is Expensive

The cost of litigating a civil matter through trial often exceeds the amount in controversy. For plaintiffs who cannot afford the expense of litigation, proposing mediation prior to filing a lawsuit offers an opportunity for resolution at a fraction of the cost of litigating their claim. For parties defending against claims, the benefits of proposing mediation prior to the adverse party filing suit affords the opportunity to resolve the dispute without incurring legal fees, discovery costs, and potential expert fees. The cost of mediation is minor compared to prosecuting or defending a lawsuit.

2. The Outcome of Litigation is Never Certain

Although clients may want their day in court, or may be litigating out of anger, spite, or the “principle of the matter,” an attorney’s role as counselor includes dissuading clients from litigating on principle or emotion. Whether a jury or bench trial, issues such as implicit bias, stereotypes, and objectivity should be considered. Only death and taxes, not litigation, are certain.

3. Litigation is Time-Consuming

Whether representing an individual or an institutional client, the time your client spends tending to a lawsuit takes away from their time working, growing their business, or participating in other life activities. In the COVID-era, many courts suspended civil trials and jury trials indefinitely, and are only now beginning to empanel juries in limited cases. Litigation has never been a quick process to resolving disputes. However, the pandemic has increased exponentially the time litigation takes as the courts face limitations including social distancing, closures, and decreased jury pools.

4. Early Resolution Provides Closure

Mediation is not a win/lose game. Mediation provides the opportunity for all parties to put an end to their disputes, and likely no party will walk away happy. However, closure brings contentment. Protracted litigation may eventually provide a “win” but at what cost? Attempting settlement of matters prior to litigation allows the parties to focus on resolution rather than the fight.

5. Mediation is Confidential

Mediation provides a confidential process for adverse parties to work towards dispute resolution. Although not every dispute is ripe for pre-litigation mediation, a large number of disputes can be resolved by coming to the negotiating table with the help of a neutral third party. One of the primary benefits of mediating before litigating is that the parties are willingly participating in good faith, under the umbrella of confidentiality. Most individuals and businesses do not want to “air their dirty laundry” publicly, and mediation provides a procedure to confidentially resolve their disputes.

Encouraging clients to engage in pre-litigation mediation has benefits for clients, relationships that attorneys have with their clients, and allows clients to return to their pre-litigation life more quickly.


About the Author: Echo A. Reynolds is a partner at the Phoenix law firm of Jaburg Wilk where she practices bad faith litigation, insurance defense and insurance coverage matters.