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Mediation: Navigating Settlement Outside of Court

by | Sep 25, 2023 | Business Law

Litigation is painful, expensive, and time-consuming. Mediation often provides a smart path to avoiding this obstacle.

If an issue arises that cannot be resolved between the parties, you contact an attorney, and your legal claim eventually gets filed in court.  Let alone the frustration from dealing with a dispute; you now find yourself dealing with the time, expense, and stress of litigation.  Although our justice system is the fairest process in the world, the wheels of justice often move at a glacial pace.  Fear not, as there are out of court solutions, even during the litigation process, that can resolve claims efficiently while not sacrificing control over the process.  One such option is through mediation.

Before we discuss how to navigate a mediation, there are a number of items that must occur and are crucial for success.  First and foremost, your attorney will undeniably need a considerable amount of background information.  This information can be in the form of documentation, synopses of events, and timelines of occurrences.  These details are the basis of a large part of the legal advocacy your attorney will present on your behalf.  Additionally, much of this information will include evidentiary materials that shape the basis of your requested relief or damages.  Next, you and your attorney will discuss and participate in the discovery phase of litigation.  This is the first opportunity to “present” your claim.  This brings us to a point where out of court resolutions are most common.  Whether it is at arbitration, mediation, or a court-ordered settlement conference, these avenues allow for the last opportunities to reach a resolution before your matter is submitted to the court/jury to decide, and it would be disingenuous not to advise of the considerable amount of risk of success that must be factored in when others are deciding your fate on the merits.

If the parties and counsel agree to mediate the pending legal dispute, there is a presumption that the parties will enter the mediation in good faith, willing to negotiate towards a potential resolution, and counsel will be equipped and prepared to advocate their clients’ respective positions.  Your counsel will discuss at the onset of mediation the reasonable beliefs why such a claim will either be successful or defended and defeated before the court/jury if the matter is not resolved in this setting.  It is at this point where the artistry of negotiation is displayed.  At its core, mediation is a venue where the parties must expect to “give a little” from their respective positions throughout the course of negotiations if a matter is going to be resolved.  We all expect a fair and just result, but mediation is a process described sometimes as “where both parties must leave ‘slightly unhappy’” in reaching a brokered resolution.  The reason is that the risk of non-resolution becomes a factor in either party’s calculation of damages.  Achieving a palatable resolution, where you still retain control in crafting such a resolution, is often the best result for clients.  Similarly, the type of resolution is not constrained by court order or jury finding – any manner of relief can be crafted into a settlement agreement.  Mediation brings finality to a difficult and stressful situation or period of time in one’s life while, if successfully navigated, eliminating the exponential nature of further fees, costs, and expenses associated with litigating claims without a guaranteed outcome.

Notwithstanding all of the benefits of mediation, sometimes settlement discussions simply break down, and the parties cannot reach an amicable resolution.  In that instance, the lawyers at Cavitch, Familo & Durkin stand ready to vigorously advocate on your behalf by either bringing or defending your claim up to and through trial.  Should you be faced with a situation where you require legal assistance, please do not hesitate to contact John Calabrese at 216-621-7860.

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