Courts aim to provide litigants with a just process for the resolution of disputes guided by the rules of civil procedure and evidence. Beginning in the late 1980’s, courts also began to offer litigants a process of resolution before trial through mediation, which has proved to be very successful and has been adopted in state and federal courts nationwide.
Mediation, however, has limitations in terms of offering litigants a path to a broader sense of fairness and justice. One such limitation that is often overlooked is the timing of mediation. Courts routinely ask parties when a case is ripe for mediation, and the reflexive answer is usually at the end of discovery or when the case is ready for trial. That means that after filing of a complaint, cases proceed for usually 6-8 months before mediation is set and means that parties have to invest enormous amounts of time and spend many tens or hundreds of thousands of dollars on interrogatories, document exchange, depositions, and motions. While a very small percentage of cases proceed through trial, an overwhelming percentage of litigation costs are spent on preparing for trial. Too often, the value of a settlement (for both plaintiffs and defendants) can be overwhelmed by the cost of the litigation.
The 6-8 months before mediation also affect the courts’ ability to administer justice. Dockets are clogged and available trial dates are pushed farther and farther into the future. Judges and court staffs dedicate many scarce hours and resources to managing the case and resolving discovery, procedural and substantive disputes.