Cal. Litig. 2018, Volume 31, Number 1

The Value Of Pre-Litigation Mediation: What Every California Lawer Should Know

By Jan Frankel Schau

In its infancy, mediation was not well understood. While some attorneys viewed it as a sign of weakness to recommend an early mediation, others shied away from it because they believed that mediation would allow for "free discovery" of the most pressing evidence in the case. As the process matured, that concept largely disappeared and today most attorneys agree to mediate because they are truly interested in achieving a settlement. And, indeed, while the great majority of mediations result in a resolution of the dispute, the settlement often occurs after the parties have spent a lot of money on discovery, motion practice, and other litigation costs. Until there is significant formal discovery and until the key legal claims have been tested through motion practice in court, many attorneys believe that the true settlement value of their case can’t be determined.

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This article argues that conducting a mediation before the suit is even filed is a very good idea. Yes, a mediation that occurs so early in the game may give the parties a "free look" at their adversaries’ cases if there is no settlement. But it also could result in a settlement that avoids the cost, time, and aggravation that comes with preparing for and conducting a trial. Furthermore, even if the dispute does not settle at an early mediation, the parties may spend less time and money in the course of litigation because of the insight gained from the early mediation.

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