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Common Business Mediation Questions

What does litigation mean?

Litigation is what happens when something goes wrong and the parties may need the assistance of the courts to determine their legal rights. For example, if a contractor is not fulfilling his duties under a construction contract, the other party may need to litigate to enforce their legal rights under the contract. General litigation is a broad term used to describe resolving legal issues which arise in all aspects of the law which are litigious in nature such as personal injury cases, malpractice, contract disputes and partnership disputes, or may not be litigious in nature, such as issues arising after a business transaction, real estate closing, drafting wills/estate planning, incorporating a business, drafting a contract or other corporate documents.

What are the steps involved to start litigation?

If the parties have exhausted all of the avenues to resolve their dispute (formal or informal settlement discussions, negotiations and mediations), the party (the Plaintiff) will have their counsel draft a complaint which sets forth all of the facts and allegations against the other party (the Defendant). The Plaintiff will serve the Defendants with the Complaint and file the Complaint with the Court. As always, there are fees which must be paid to the Court for such filings. After the Complaint is served upon the Defendants and filed with the Court, the Defendant must serve upon the Plaintiff and file with the Court an Answer to the Complaint. The Defendant may also assert a counterclaim against the Plaintiff in the Defendant’s Answer.

What happens next?

After the initial pleadings (the Complaint and Answer) are served, the parties will be required to exchange discovery which involves providing the other side with all relevant documents and information to support or defend the claims. A party may also be deposed (required to give testimony under oath) by the other side’s counsel. There will be several conferences held by the Court to determine the status of the case and determine whether it is ready to go to trial. Issues during the litigation may arise which the parties may be required to address through the drafting and serving of legal papers which must be responded to (Motion Practice). The case may be resolved by motion practice or settled by the parties prior to a trial, through settlement negotiations between the lawyers, through mediation or arbitration. If they do not settle or get resolved by motion practice, the case will go to trial and the parties may be called as witness at trial. There is much preparation necessary to participate in a trial. Evidence must be gathered and legal documents drafted for the Court to explain each party’s legal position.

How long will the litigation process take and how much will it cost?

It depends upon a number of different factors including, but not limited to: (a) the type and complexity of the matter and issues to determine; (b) whether there are a lot of depositions to take and discovery to complete; (c) whether there is a lot of motion practice that takes place; and (d) whether the parties settle the matter prior to trial. The average case is takes at least a year and some even longer. The costs will also depend upon the resources which apply to each case.

Business Mediation

What is business mediation?

Mediation is an alternative to litigating a dispute before a court and having a judge decide which side is right and entitled to relief. In mediation, a neutral person called a Mediator helps the parties try to reach a settlement. The Mediator is not a judge and has no authority to make any decisions about the case. The parties will reach their own settlement or if not settled, return to the courts for determination.

Why should you choose mediation?

Mediation allows both parties to resolve their dispute in such a way that both sides can often receive all or part of what they want rather than risk having a judge make a determination that may not please either of the parties. This happens because the process allows both parties to share the most important things they want the other side to know about their case either directly or through the Mediator. Accordingly both sides quickly learn about the other side’s case in a short amount of time. It also allows both sides to privately explore settlement options with the Mediator, who will try and assist the parties to reach a mutually agreeable settlement.

When is mediation better than filing a lawsuit?

Mediation works best when both sides are able to have faith in the mediation process as an alternative to traditional litigation. It is much less expensive than litigation and therefore a preferable option when the cost of litigation will be prohibitive. When the parties want their voice to be heard by someone who is impartial and who they can talk to directly about what they think is important about their case. Both parties however must be committed to the process.

How does mediation work?

The Mediator will generally ask for a confidential statement from both sides outlining the dispute, what the party wants to accomplish, what the parties view as the strengths and weaknesses of their case and how they think the matter might be resolved. The statement is not shared with the other side and is for the Mediator’s eyes only.

At the mediation, the Mediator will allow the plaintiff to present his case followed by the defendant. The Mediator will then hold private meeting with both sides at which time he will learn more about the matter, the needs of the parties and the information that each side may want to share with the other side through the Mediator including potential components of a settlement. The Mediator will attempt to have each party focus on what they actually need rather than what they say that they want and will try to help the parties tailor a settlement that addresses the needs of each party.

How to find a mediator

Your local Bar Association can provide you with the names of a qualified Mediator. There are also private organizations that have lists of Mediators.

How to select the right Mediator

You will want to select a Mediator who has been trained in mediation and preferably one who is knowledgeable about the subject matter of the dispute.

If I go to mediation, do I still need a lawyer?

It is not absolutely necessary to have a lawyer if you go to mediation, however, it is helpful to have the assistance of a lawyer who can explain the legal issues and help to develop the facts.

If we decide on mediation, will we still have to go to court?

If you reach a settlement in mediation, the agreement will be reduced to writing and become a binding contract. The court will accept that settlement if you have already started a lawsuit. If no lawsuit was started, there will be no need for one to be commenced.

How much does mediation cost?

The Mediator will normally charge an hourly fee for time needed to review papers and prepare for and conduct the actual mediation.

Will I have to attend the mediation personally?

Generally yes, the whole purpose of the mediation is to allow the parties an opportunity to informally tell their side of the story personally, something that is usually not permitted in court, where the lawyers address the court not the clients.

Who will be at the mediation?

Generally, it will be all the parties to the dispute, their attorneys and the Mediator. The parties can bring other people with them who they think might help them explain their case.

If we go to mediation, will my case be resolved completely?

It is possible for the matter to be entirely resolved.. It is also possible however, that only parts of the dispute are resolved. This can be very beneficial to the parties who can then focus only on those areas that remain in dispute.

How long does mediation take?

It is possible for a mediation to be completed and a resolution reached in one session. If the case is more complicated it could take several sessions to reach a settlement.