The parties to a potential lawsuit have the ability and opportunity to submit their conflict to pre-suit mediation to hopefully avoid litigation.
In many instances, the parties have a good enough understanding of the claims, defenses, issues and evidence to make a pre-suit mediation conference worthwhile.
It will save the parties expense and anxiety over litigation. The court will order mediation once the case is in litigation anyway, so why not take advantage of mediating early, especially if the disparity in information pre- and post-litigation is not that significant?
Some of the best cases for pre-suit litigation would be wrongful death claims, breach of contract where the damages are liquidated, account stated claims and declaratory actions.
These are cases where the information relevant to the case should be known well by the parties without a great deal of discovery, especially – and unfortunately – with regard to much of the damages in a wrongful death case.
Some parties may be reluctant to go to pre-suit mediation, even if the information is well known, because one side or the other doesn’t want to provide too much more information too early. Ah, the element of “surprise.”
I can certainly understand this. However, it says more about the trust between the parties and attorneys than the issues.
Once the suit is filed, the new rules require full and continuing disclosure, and by the time the parties are ordered to go to mediation, there isn’t much that isn’t known anyway.
Certainly, in any mediation, if the parties don’t trust each other, regardless of when it occurs, the settlement process is impeded.
In that instance, I think my biggest focus as the mediator is to help establish trust between the parties.
An example would be encouraging one side to make a move that signals “I’m here to make a good faith effort.” It now encourages the other party to hopefully respond likewise.
A plaintiff in a personal injury case, as an example, has many advantages in seeking pre-suit mediation.
The attorneys’ fee will usually go from 33.3% to 40% after a suit is filed. Costs incurred for filing fees, deposition testimony and transcripts, and expert witness fees can be avoided.
The fees and costs are the first two items on most settlement statements at the end of a case.
Pre- and post-suit costs will often be a significant difference, sometimes even the difference between a few thousand dollars and tens of thousands of dollars.
Thus, a settlement today before suit can provide more net money to the plaintiff than a significantly higher settlement after months of litigation in preparation for trial.
Whether pre- or post-suit, mediation gives the parties more certainty than the opinion of six jurors.
Sometimes, the only and best way to go is trial. No doubt. But most cases settle and for a reason: fear of the unknown vs. the certainty of the known, like the proverbial “bird in the hand” rather than the “two in the bush.”
Musa Farmand is a certified civil circuit court mediator.