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A Litigator’s Guide to Avoiding Litigation through Mediation

With apologies to Richard Nixon, "now more than ever" is the time to consider mediation rather than expensive litigation.  Lawsuits are costly, in many ways.  The financial costs of litigation are no secret.  Attorneys typically bill at an hourly rate and the hours add up quickly considering all the work necessary to get a case to the point at which it's ready for trial.  Costs and fees mount even faster when the case gets to trial.  In addition to attorney's fees for 10 to 12 hours a day during trial, parties are responsible for expert witness fees, court reporter fees, and jury fees if the case is tried to a jury.  Indirect litigation "costs" that are often not considered can be as difficult to handle as the financial outlay.  People who have never been involved in litigation often do not anticipate the emotional impact of being involved in a lawsuit for months or even years.  Sleepless nights, domestic upheaval, missed work, and constant aggravation too frequently accompany involvement in lawsuits.  Like surgery, litigation should seriously be considered only after less drastic steps have failed.

One option that should seriously be considered before filing or proceeding with a lawsuit is mediation.  Mediation is generally defined as "a process in which a neutral person or persons facilitate communication between the disputants to assist them in reaching a mutually acceptable agreement."  Code of Civil Procedure section 1775.1(a).  Although this definition applies specifically in case filed in superior court, it captures what mediation is about in most situations.  For years, mediation has been the favored method of alternative dispute resolution ("ADR") in California.  Mediation, whether before or after the filing of litigation, can be used to resolve business disagreements, neighbor disputes, family disputes, personal injury claims, employment claims, and just about any other type of disagreement that could be the subject of a lawsuit.

Mediation has many benefits, some of which have already been identified.  Successfully mediating a dispute allows parties to avoid incurring substantial expenses and puts a relatively quick end to a dispute, which frees people to focus on their families, businesses, and other essential matters.  Furthermore, unlike a dispute that is submitted to a judge or jury for decision, mediation allows the parties to control the outcome.  The parties can agree in writing to just about anything, as long as it doesn't violate the law or public policy.  In other words, parties can't settle a family dispute with a mediated agreement that someone will kill Uncle Charlie.  However, mediated agreements can encompass issues that would not necessarily have been part of the litigation.

Especially with mediation before the filing of a lawsuit, the parties have substantial control over the ground-rules.  If the dispute is not legally complex, the parties might consider mediating without attorneys.  Although a mediator cannot provide legal advice, a mediator can help the parties narrow the legal issues involved in a dispute.  The parties also have substantial latitude in selecting a mediator.  Although many mediators are attorneys, many qualified mediators have no formal legal training.  Non-attorney mediators typically charge less for mediation than attorney-mediators.

In civil cases assigned to mediation under California statutes, the mediation is conducted under strict confidentiality to ensure that parties speak openly and candidly without fear that statements made at mediation will later be used against them.  With very limited exceptions, primarily in the case of commission of a crime at a mediation hearing, mediators cannot be called to testify as a witness about anything that occurred at mediation.  In pre-filing mediations, the parties can agree to conduct mediation under these confidential conditions.

Our attorneys have handled hundreds of mediations.  Although the most of these mediations have been in matters that had already proceeded to litigation, we have also represented clients in mediations that were undertaken in the hope of avoiding lawsuits.  If you are involved in a dispute that might benefit from mediation but need more guidance or assistance, plenty of information is available on the internet.  If you have more specific questions about potential mediation in San Luis Obispo County, please call us.

Mike McMahon

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