Litigation and Mediation: Friends Not Foes

This article, written by shareholder Dave McGrath, was originally published by the NH Bar News and can be found here (pg 25).

I recently found a very old vhs recording of some of my (cringeworthy) Trial Advocacy witness work in law school.  For some reason evident to me 30 years ago, but certainly not now, the tape seemed important enough to save. For many of us planning to litigate cases, a course like Trial Advocacy – that taught us to discover and use key documents; prepare and impeach witnesses; and think on our feet – was exciting and always oversubscribed.  Everything about it was worth remembering.  In contrast, when I attended law school, Alternative Dispute Resolution was a new course offering; few students took the class or talked much about it.  It probably competed with Maritime Law for fewest registered students each semester.

Eventually, ADR gained in popularity and became a recommended law school offering, if not a core one.  Notwithstanding, there remains an uneasy tension between ADR and litigation, in academia and in law offices.  In the former, ADR professors are rarely the trial advocacy professors; and in the latter, those who mediate are not usually the lawyers others think of to do battle.  And, those who battle are not typically thought of to mediate disputes.  It is not surprising, therefore, to see many mediators disassociate from active litigation practices.

Further, some litigators are  threatened by ADR (mediation more specifically), worrying that their brand of dispute resolution is at risk.  With electronic discovery costs raising the stakes considerably for parties and applying pressure to settle cases, parties are increasingly eschewing prolonged litigation fights.  This is particularly true in certain civil disputes where costs and fees can easily eclipse the amount in controversy.  And, bigger matters with more money at issue almost always involve enormous amounts of potentially relevant electronic evidence; in paper terms, enough to fill Gillette Stadium many times over.  This is daunting for counsel and their clients.  It is no wonder, then, that alternative forms of dispute resolution, like mediation, are so often used to end these litigation costs and disruptions.  Yet, a well-litigated case and mediation should be viewed as complimentary, not competing, dispute resolution vehicles.

As a litigator and mediator, I am often asked about mediating a case near its inception, before significant costs have been incurred.  I have found that in most instances, despite a shared desire to eliminate legal costs, these early efforts are not nearly as effective as they are later in the case, after parties and counsel know more about the strengths and weaknesses of their own and their adversaries’ cases.  Key documents are discovered; witness testimony helps and hurts in unexpected ways; and over time lawyers emphasize aspects of a case they initially undervalued, and they jettison or deemphasize parts of a case they initially overvalued.  Lawyers aren’t alone in this.  Adjusters need time properly to assess and value a case.  Parties need time to appreciate how events, communications, and stories might be perceived or misperceived.

All of this is to remind us that mediation at its best depends on a well litigated case; one in which the important information has been discovered and assessed; key witness testimony evaluated; and legal theories tested.  Remember also that not every case is suitable for resolution though mediation; some cases need to be tried because the best possible mediated settlement is too imperfect, requires too much compromise.  Even in those situations, though, the mediation effort is not wasted.  It provides counsel and parties more clarity about their interests and adherence to a path that will take them through the expense and risk of trial.  Mediation is properly viewed as an essential and valuable part of the litigation process; not something that threatens or exists independent of it.