Litigation
Cal. Litig. 2018, Volume 31, Number 1
Content
- A Week in Legal London: One Lawyer's Love Affair
- America's Opioid Epidemic: Emerging Issues of Insurance Coverage
- Editor's Foreword: Spring into Summer
- From the Section Chair
- Louis D. Brandeis: American Prophet by Jeffrey Rosen
- Masthead
- Past Chairs of the Litigation Section
- Past Editors-in-Chief
- People v. Sanchez, Hearsay, and Expert Testimony
- Police Officers On Trial: "Protect and Serve" or "Protect and Survive"
- Table of Contents
- Where External Reality Collides with Trial: Judicial Disqualification Lessons from the Harry Bridges Cold War Trials
- Yick Who? the Great American Hero
- The Value of Pre-Litigation Mediation: What Every California Lawer Should Know
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.
[Page 11]
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.