Back in normal times – loosely defined as early March 2020 and before – mediation could be either a great tool to move beyond an impasse or – if the parties were too far apart and unrealistic – a colossal waste of time and money. Now that the court system has effectively shut down due to the COVID-19 pandemic, however, mediation has emerged as a critical tool to resolve disputes that keep marching on even as the world around us has stopped.
Alternative dispute resolution (known as “ADR”) is the settling of disputes outside the courtroom. Non-binding mediation is a voluntary form of ADR in which a neutral third party, the mediator, works to help the parties come to a mutually acceptable resolution to their dispute. (Unlike arbitration, mediation is not binding and mediators are not empowered to make or enforce decisions.)
In general, without the proper approach and preparation to mediation, the parties may be pushed further apart. Consider this example: a couple of years ago, my client was amenable to settling but the plaintiff, in the lead-up to the mediation, was less than forthcoming. He led me to believe that he was looking to settle for less than six figures. Based upon this understanding, my client agreed to mediation. We prepared our submission for the mediator and attended the mediation with the goal of resolving the case. At the mediation table, however, the plaintiff’s counsel increased his prior settlement demand and then acted indignantly when the offer presented was, in his mind, inadequate. While the mediator sided with us when it came to valuation, there was no reasoning with the plaintiff and needless to say, the case did not settle and we all moved forward to trial more frustrated than before.
Considering situations like that one, our office generally moves a case into mediation only when there is a glimmer of hope for a resolution. But remember, mediation is a tool to avoid trial in an effort to resolve matters reasonably. Well, regardless of how badly we may want to go to trial on a matter, for the foreseeable future in New York, that’s an impossibility. But the disputes that led litigations to be filed in the first place have not gone on hiatus. Therefore, in just a few [long] weeks, mediation has emerged as a vital tool to resolve disputes that were previously headed for trial before the coronavirus upended life as we know it.
In normal times, if the parties are reasonable and amenable to settling, mediation can be an economical way to resolve a matter before fully preparing for a long and costly trial. When we are prepared and the parties are close enough to make it worthwhile, mediation is almost always a success. Now that litigation is temporarily off the table, mediation is a more important tool than ever to achieve a final resolution when the parties need it. Please contact us to discuss whether the time is right to mediate.