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Business Litigation: Mediation as a Litigation Tool

On Behalf of | Mar 21, 2014 | Business Litigation

Formal mediation can be an effective tool in business, trust, and real estate litigation.  In business litigation, Mediation is essentially a process in which the parties attempt to conclude a settlement of their lawsuit before the trial date without going to trial.  In mediation the two sides agree on a mediator (often called a “neutral”) who will attempt to stand between the two sides and help them settle their case.  Usually a mediator will be a retired Judge, or in some cases an experienced attorney trained and experienced in mediation.

In mediation the two sides generally meet for a half or full day at a mediation facility.  Often the two sides have very little (or even zero) face-to-face contact, and they communicate through the mediator.  This prevents tempers from flaring (almost always a factor in lawsuits) and allows for effective communications between the two sides. 

  • Mediation is a low-risk strategy for concluding lawsuits because everything that the parties do at mediation is voluntary.  The mediator cannot make the parties do anything.  His or her only interest is to see the case reach a settlement and whether the case settles (not how it settles, or on what terms) is how mediators are judged and how they judge themselves.
  • There is no testimony at mediation or other formal admission of evidence.  In fact, nothing said at mediation is admissible at trial should the mediation not result in a settlement.

Buffington Law Firm’s business litigation trial attorneys believe that the best way to use mediation as a litigation tool is to recognize that mediation is a form of litigation — essentially it is an alternative to trial.  This means that it is essential that the attorneys are prepared to argue the case to the mediator, to show the mediator that we are prepared to try the case should mediation fail, and to show the mediator that the other side is running a substantial risk if they do not settle.  Put simply, by being prepared our side motivates the mediator to put pressure on the opposing side to acquiesce to our client’s litigation objectives.

If you have a business, real estate, or trust litigation case, we invite you to call Buffington Law Firm for a free legal consultation.  In this consultation you will speak directly to an experienced attorney who will discuss your case with you.