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To Mediate or not to Mediate?

Not every case is appropriate for mediation. Some cases are suitable for litigation, while others ripe for negotiation are also appropriate for mediation. The factors below are predictive, not evaluative. Some factors may be given more weight than others, depending on the circumstances. However, most cases ripe for mediation share many of these factors.

Factors Favoring Mediation 

  • An important, on-going relationship exists between the parties 
  • Those with authority to make important decisions are present or can be present forthe mediation
  • One side maintains unrealistic views and would benefit from considering the casein a different light
  • The parties are open to considering the case in a different light
  • The parties are genuinely interested in compromise
  • The general attitude of each side toward the other is relatively objective
  • Multiple parties are involved, increasing time and cost of litigation
  • Both parties seek a speedy and inexpensive resolution to the dispute
  • Desire to avoid publicity
  • Confidentiality is of great concern to at least one of the parties
  • Both sides wish to avoid burdensome, intrusive, or costly full-blown discoveryIssues involved in the dispute are complex or highly technical
  • Disputed issues are based upon fact but do not turn on the credibility of keywitnesses
  • At least one side seeks a resolution that a court could not grant, such as amodification of the relationship
  • Parties wish to have effective control over the outcome of the dispute and avoid arestrictive imposed outcome
  • The claim is not frivolous
  • There is no need to create legal precedent
  • There is no need for injunctive relief
  • The chances of winning at trial are uncertain

Factors Against Mediation

  • Existence of collateral issues that may enhance resolution in a mediation setting
  • Need to establish legal precedent
  • Frivolous case, absent a bona fide dispute
  • Entire case likely to be decided on motion to dismiss or summary judgment
  • Need for more time before settlement options can be evaluated
  • Parties have not been named or made aware of the dispute
  • Authorized decision maker not available
  • Financial limitations prevent serious settlement negotiations
  • Past settlement was breached by one of the parties
  • Parties not genuinely interested in compromise
  • Need for immediate equitable relief