One of the most challenging aspects of an attorney’s job is to advise a client regarding possible litigation. I think of myself as a pragmatic business lawyer whose primary job is to help my clients achieve their business objectives. I much prefer to accomplish this through time spent on advocacy, negotiation and problem solving. Litigation typically is not part of the strategy to achieve client objectives unless that is the reason the client has come to me from the outset. When litigation becomes a question or even a tactic to be considered (if the client has been sued already, that’s a different topic entirely), I try hard to give objective advice about the merits or lack thereof vs other options, as I see them. The fact is that even when litigation goes exceedingly well, there often is substantial staff and executive time spent in pursuit of a court claim (along with mental and emotional distraction), not just dollars; and, of course, there will be dollars spent, often substantial sums, for lawyers, consultants and related costs, with no assurance of success, let alone an opportunity to recoup the spending (with some narrow exceptions). This is time and money that could be spent either in resolving the source of the impasse or pursuing other business opportunities with a greater prospect of successful completion.
Minnesota’s court system has, to its credit, aggressively pushed parties to use various forms of alternative dispute resolution (ADR)(which includes mediation) to short-circuit litigation. Mediation can be a very effective tool for negotiating a resolution to an issue that led to actual or potential litigation; it is very flexible, usually cost-effective and based on a schedule set by the parties. However, it is not a sure-thing. Based on my experience with numerous mediation sessions over the years, one of the most important factors leading to a successful mediation process is timing: how much discovery has been completed so that the parties feel they are well informed about the facts in question; how much money has been expended or is anticipated to be spent if the litigation runs its course; and how much pressure exists for one or both parties to the litigation to reach a resolution on a timely basis. Another important factor is the willingness of the parties to sincerely engage in the mediation process; if one or both parties are not motivated to resolve the dispute, a successful mediation outcome is more challenging. In that case, the first factor (timing) becomes more important.
For those not familiar, mediation is a controlled form of negotiation involving a neutral third-party, often a lawyer but not necessarily so. The mediators job is foremost to facilitate direct conversation between the parties for the purpose helping them see the merits of a resolution of their litigation, if possible. In the first instance, the parties may not feel they are ready to mediate (egos, principle, anger, lack of pressure, etc.); the mediator has to find a way to give parties a voice so that they can focus more honestly on the source of the dispute. If parties are represented by lawyers, then the mediator can encourage consultation privately to make sure each party knows what lies ahead for them if a lawsuit either is commenced or continues. If the parties are not represented for some reason (maybe no lawsuit yet), the mediator needs to educate them about what a court process entails, both in time and money, as well as the uncertainty of a satisfactory outcome.
In my experience, mediation sessions often run several hours if not a full day (including well into the evening if progress is being made and the parties see an end to the dispute). Sometimes a mediation will extend over a couple of days to allow parties to regroup and investigate settlement options or underlying facts. Sometimes, in spite of best efforts, mediation does not result in a conclusive settlement; but even then, mediation can positively contribute if it does nothing more than allow the parties to clarify positions, exchange pertinent information and voice objections. Perhaps a negotiated settlement can still be achieved outside of mediation at some future point in the process (see my discussion of Factor 1 above).
While I am not a fan of litigation, I realize that it is a reality for my clients in some instances, sometimes not of their choosing, but sometimes part of a business strategy. In such case, mediation can be a useful tool to bring closure to the dispute without the extensive investment of time and money that would otherwise be required to bring a matter to conclusion through trial. But for mediation to work, parties have to want it to work and be motivated to try. Everything else is just details.