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Evaluating a Case for Possible Mediation
Evaluating a Case for Possible Mediation
As a general rule, any civil dispute is a candidate for mediation. The following is a checklist of some of the factors which can be used to evaluate whether a given dispute might be appropriate for mediation. 1. When Mediation is Appropriate __Parties are unable to reach an agreement through normal negotiations __Assistance of a neutral third party is needed to help identify and prioritize the issues and explore solutions __Direct client input is important to achieve settlement __Parties agree to mediate __No pure question of law __The law is unable to provide an adequate remedy __To resolve a dispute without jeopardizing an ongoing relationship __Desire for confidentiality or privacy __Location of litigation is unfavorable to your client __To minimize cost __Value of case is moderate __To expedite settlement __Percentage of chances of winning the case are small
2. When Mediation is Unlikely to be Successful __Issue of first impression (test case) __Motion in limine ruling is needed on the exclusion or admission of pivotal evidentiary issues likely to affect the outcome of the case __Potential for extremely high monetary jury verdict __Incompetent party (parties must be legally competent to contract) __Unwilling party __Nuisance issues (e.g. payback, revenge, desire for moral victory) __Merely for purposes of delay of ligation __Highly technical or complex issues in dispute (e.g. patent cases) __Available mediators or complex issues in dispute (e.g. patent cases) __Available mediators unacceptable to either party __One of the parties is maintaining an extreme and uncompromising position __Type of disputes which might not be appropriate for mediation include: __Constitutional rights issue (e.g. civil rights case) __Gross disparities in bargaining power between the parties __Statutory requirement of exhausting administrative process prior to litigation (e.g. social security, workers’ comp) __Highly emotional issues __Underlying issue of insurance coverage __Plaintiff relying on punitive damages as a key element of his claim and proof of egregious conduct is hotly denied by defendant
© 1996 The Mediation Center, Inc.
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