Mediation: A Growing Presence in the Courtroom and Business

With increasing frequency, mediation is not a choice that can be made by a party in a lawsuit or transaction; the courts are requiring parties to go to mediation, whether they want to do so or not. Additionally, many courts require attorneys to speak with their clients prior to each court conference to review, again, whether the party wants to request mediation. As the courts are looking within to find ways to make litigation more efficient, the use of mediation to resolve disputes is becoming more and more prevalent. Also, in private transactions, many companies are requiring parties with whom they do business, or potential employees, to sign mediation clauses, often referred to as “step clauses,” in agreements. These clauses require a party, prior to commencing an arbitration or a lawsuit, to first try mediation to resolve a future dispute. The reason why these clauses are so often included in contracts is because these companies, oftentimes through experience, know the value of mediation, both in cost savings for the parties and the time that ultimately will be spent in a litigation. The takeaway is that, because you may eventually be required to go to mediation by a court or a party in business — whether you want to mediate a dispute or not — you should insist that your attorney review with you what mediation is and how it can be used to your advantage. Be prepared!  As I’ve often said, mediation can be a quicker and cheaper way to resolve a dispute. And, even if it does not succeed in completely resolving a dispute, it may result in resolving some of the issues and provide the parties with a better understanding of the strengths and weaknesses of their position. However, for mediation to be successful — or least useful — it helps if the parties understand how the process works, and its value, before deciding whether to agree to mediation, or to the inclusion of a “step” mediation clause in an agreement, or taking part in one.

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