Early evaluation of liability, damages, and other factors pertinent to the outcome of a dispute can, with the help of mediation, result in an early resolution. The earlier a conflict is resolved, the less expensive it is for the parties, both monetary as well as in emotional costs. 

     One must start with the understanding that all disputes are resolved in one manner or another.  It may be by a jury trial where the resolution of the dispute is given to twelve strangers to the dispute; and at the other end of the spectrum, through mediation where the parties to the dispute themselves fashion a resolution.

     When the parties resolve their own dispute by mediation, the resolution is long lasting.  Mediation is private, confidential, and only the parties’ imagination and creativity limit resolution. The alternatives for a jury’s resolution of a conflict are extremely limited.  A jury can award money damages, establish a property line, or in a replevin action, return property.  Through mediation the parties can fashion a creative resolution which is advantageous to all parties and may preserve existing relationships.             

     Lawyers are hired to resolve their clients’ conflicts and the quicker and more expedient the conflict can be brought to a resolution, the better the attorney can serve their clients.  In some situations, the only appropriate way to resolve a dispute is to turn the decision over to someone else – either a judge for bench trial or to a jury.  Remember, a civil trial is not a “search for the truth”, but merely one way of resolving the dispute.  Every dispute has a large gray area, and this is where mediation is appropriate.  Keep in mind the time value of money – a case resolved today for $100,000 has more value than a case resolved in two years from now for $100,000, and has a much greater value, if one includes the cost of preparation and attorney’s fee incurred during the two years that the dispute lingers before resolution.  The longer a conflict lingers, the more expensive it is for clients, both in money and emotional expense attached to the dispute.  An unresolved dispute may keep a company from going ahead with its business plans.  An open file is a direct as well as indirect expense to an insurance company. 

     Thorough preparation is a key to successful mediation just as it is to a successful jury trial.  Conflicts are resolved when the parties define their positions which may then be evaluated by the other side and then move from their position to their joint interest – resolving the dispute.    Many insurance carriers have instituted programs, which require attorneys to evaluate liability as well as damages within 120 days of filing an answer.  If this timetable is met, there is no reason not to try and resolve the dispute by mediation at that point.  Cases rarely get better with time.  To the extent risk management departments can gather the information to make a decision on liability and damages before litigation, it is their best interest to look at mediation as an appropriate way to resolve the disputes before litigation.   

     Certainly to the plaintiff’s lawyer it is an economic advantage to settle a case before filing a lawsuit and undertaking extensive litigation.  With discovery rules being what they are today, the other side will always find your weaknesses.  The further the litigation process proceeds, the more likely weaknesses will become known.  Thus, the early evaluation of your own weaknesses, as well as strengths, can save time and money.  Mediation can help you understand your strengths and weaknesses when a reasoned and principled negotiation is undertaken with the other side.  It is not unusual for a dispute to be resolve within a few days or weeks after mediation, as the parties have a chance to reflect on the other side’s perspective. 

     Early mediation can be a reality check for one’s own evaluation of the conflict when you learn the other side’s perspective.  To one person, a siren may mean a tragedy has occurred and to another that help is on its way. 

     Mediation with the help of a well-trained mediation can help facilitate these discussions -- and the sooner the better.