When Can I Use Mediation?
When Can I Use Mediation?
A) Contractual Dispute Resolution Clause
B) Early Case Assessment
C) At Time of Dispute
D) Court Annexed Mediation Programs
a) Contractual Dispute Resolution Clause
Mediation can be used at any time in a dispute, including before it becomes a filed case. There are a number of approaches to defining or determining the appropriate time.
There is no one right way to conduct a mediation. Parties may adapt the procedure to their own needs. There is also no one right time to conduct a mediation. The opportunities to reduce the costs and wear and tear of court proceedings are greatest before litigation has commenced, but mediation may be a sensible option at any point in the litigation process, even while an appeal from a trial court judgment is pending. Parties not ready for a mediation at the outset of litigation may be more receptive as litigation runs its course. Mediation also can be useful as an adjunct to litigation--it can be used for "parts" of disputes, as well as for the whole matter. (CPR Mediation Procedure)
The best time to agree on a sensible way to resolve a contractual dispute is when parties are negotiating their business agreement, before any dispute has arisen. A cooperative atmosphere typically prevails at that juncture, so that agreeing on rational, fair dispute resolution procedures can be built into the negotiating process. Once disputes erupt, it can be much more difficult for parties to agree about anything. (CPR Model Clauses and Sample Language)
Often contracts will include a process for “escalating” a dispute so that it can be resolved before it becomes disruptive and such escalation processes usually include a provision for mediation.
CPR Clauses Arbitrate or Litigate Chart
Dispute Resolution Drafting Checklist
CPR Prevention Practice Materials
b) Early Case Assessment
In today’s highly litigious business climate there are numerous business and legal trends supporting the use of Early Case Assessment. These trends include an increasing volume of claims and litigation, the increasing complexity and protraction of claims, and the resulting higher legal fees and settlements. In this climate, many legal departments have worked to develop new definitions of “value” and “win” by treating disputes as a business process, and protracted litigation as a defect to be remedied. One effective tool for controlling disputes and reducing or eliminating litigation is the ECA process.
(CPR Early Case Assessment "ECA" Toolkit 2010)
c) At Time of Dispute
Negotiation is the time-honored initial step in attempting to resolve disputes. As effective as negotiation is to resolve disputes, impasse can arise during negotiations that the parties are unable to break through on their own. The assistance of a mediator can be beneficial in a wide range of disputes and circumstances.
The timing of a mediation is a major issue. The opportunities for savings in legal fees and other costs are greatest if mediation takes place early on — and is successful. In many cases the type of information exchange that can readily occur within the mediation framework will provide each side with the information it needs to evaluate its case and to responsibly negotiate a settlement.
To assist counsel in assessing whether mediation is appropriate, a decision which is more an art than science, CPR has developed a Mediation Analysis Screen.
d) Court Annexed Mediation Programs
Many federal and state courts already have adopted procedures mandating the referral of a broad range of cases to mediation or to early neutral evaluation, a process different from mediation, but which shares some of its characteristics. Other courts are expected to follow suit. Litigants can expect that increasingly their cases will be referred to court-selected neutrals, frequently members of the bar who have volunteered for such service on a pro bono basis or are paid. However, most courts will accept the parties' agreement to mediate privately in lieu of the court's procedure, with the advantage that the parties may select an agreed upon mediator in whom they have confidence. Of course, even when mediation is mandated the process remains non-binding. The mediator is not a decision maker.
The information and resources on this website should not be construed as legal advice or opinion, or as a substitute for the advice of counsel.
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