Originally from Dispute Resolution Journal

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Given the statistical reality that the vast majority of all civil lawsuits are resolved through some form of settlement before court adjudication, it should not be surprising that mediation has become increasingly relevant for parties and counsel in the landscape of dispute resolution. While mediation is frequently used at certain stages of litigation for settling legal claims, the mediation process seems to be still largely underutilized in regard to its scope, function and capabilities. It is not uncommon to hear parties, and lawyers, express reluctance to the use of mediation for reasons that are really misconceptions regarding the mediation process rather than elements stemming from rational analysis. Here are a few frequent misconceptions that often prevent litigants from achieving the full benefits of using the highly effective and flexible dispute resolution process that is mediation. 

1.    Mediation can fruitfully happen only after substantial discovery occurred in litigation.

Mediation can productively and effectively be conducted at virtually any stage in the lifecycle of a dispute. Parties, with the assistance of ADR-savvy lawyers and an experienced mediator, can design a mediation process that allows for informal discovery and exchange of information in a less adversarial and more efficient fashion than in litigation. Mediation has been successfully adopted in many instances before, and instead of, litigation, including in complex disputes requiring conspicuous exchange of information, technical expertise and structured proceedings to conduct settlement discussions. Too often the mediation process is erroneously conceived as just an isolated event involving settlement negotiations. Rather, mediation is a flexible process founded on the agreement of the parties, that can have a much broader scope than to exchange settlement demands and offers, and it can be efficiently adapted to the needs of the case and to those of the parties involved.