Which Comes First: Litigation or Mediation?

When it comes to resolving legal disputes, most people’s first thought is litigation: taking the other party to court. They usually don’t think of mediation first. “I’m going to sue you for everything you’ve got!” sure sounds more emotionally satisfying than “Why don’t we mediate?” Besides, mediation is something that the court makes people do, they think, not something that someone might do voluntarily to avoid going to court, but perhaps it should the first thing on their minds.

"Life Size Rock'em Sock'em Robots"® Game. Photo © Jeff Smoot

While litigation and mediation both have the same goal—they’re both dispute resolution processes—they are vastly different approaches that vary significantly in terms of time, process, cost, and control.

Litigation is the usual approach. It involves filing a lawsuit and asking the court to decide. But the litigation process is time-consuming; it can take a year or more for a case to go to trial, a year of written discovery, depositions, court hearings, and preparation, that involves a large commitment of time and money, not to mention stress and the potential to destroy friendships, families, and business relationships. And ultimately, a judge or jury makes a final decision that is binding on the parties, subject to their right to appeal. Sure, the parties have their “day in court” but in the end, a decision is made for them that one party—or both—may regret.

Mediation is much different. It involves using a neutral third party to facilitate a difficult conversation between the parties in an effort to help them find common ground to resolve their dispute through an agreement that meets each party’s needs. Unlike litigation, the mediator does not make a decision for the parties, but instead facilitates effective listening and communication with the goal of helping the parties reach an agreement that is voluntarily accepted by both sides. The mediation process is often faster and more cost-effective than litigation, and gives each party a measure of control in an outcome that they can accept instead of having a decision made for them.

Which is better? It depends on who you ask, but even the courts favor mediated dispute resolution in most cases, which is why many courts order parties to attempt mediation before the case goes to trial. Consider the thoughts of retired judge David J. Issenman, who spent 20 years as a family court judge in New Jersey:

“I am firmly convinced that mediation … is much more preferable, easier, faster, and less expensive than litigating … in a courtroom,” Judge Issenman wrote in a Sokoloff & Wolfe law firm blog[1]. “In mediation, you have a much greater ability to control the process … than you do in litigation, where you are at the mercy of the system.”

“Having a judge decide your life should be the very last option,” Judge Issenman concludes. I think he's right.

Many lawyers and judges concur that mediation should be considered as a first option in many cases. Instead of taking someone to court and waiting to mediate until ordered to do so, it may be wiser to take them to mediation in an effort to resolve the dispute before filing a lawsuit. You don’t have to have a pending lawsuit to engage in mediation; in most cases, you can mediate first and litigate later if the mediation fails. In many cases, early mediation avoids much of the time, cost, and stress of litigation. Instead of spending a year entrenched in the litigation process, you can move forward with your life or business.

Early mediation can also help make litigated cases easier and faster to resolve. A mediator can help the parties share information that they need to make informed decisions much faster and cost-effectively than going through the formal discovery process, especially in divorce cases where sharing financial information early in the case can help avoid prolonged litigation. Even if a you file a lawsuit first, engaging in mediation during the early stages of litigation can help resolve at least some of the issues in dispute early and narrow the scope of trial to only those issues that really can't be resolved through negotiation and agreement.

If early mediation sounds like a good option, feel free to contact Westwood Pacific Law. We can represent parties in mediation or serve as mediator. Our attorney Jeff Smoot is a Certified Mediator with experience in civil, commercial, and family mediation who is happy to discuss the pros and cons of mediation versus litigation.

This blog is intended for informational purposes only and does not constitute legal advice or an offer of representation. No attorney-client relationship is intended or created by this article. If you wish to obtain legal representation, please contact Westwood Pacific Law PLLC at (206) 420-2466 or westwoodlawoffice@gmail.com.

[1] https://www.skoloffwolfe.com/insights/mediation-is-better-than-litigation-for-your-divorce-a-judges-perspective/