Originally from Alternatives to the High Cost of Litigation

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“Mediation will not always be successful, but it should not spawn more litigation.” Willingboro Mall Ltd. v. 240/242 Franklin Ave. LLC, 215 N.J. 242, 71 A.3d 888 (2013).

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In their seminal 2006 article, James Coben and Peter Thompson expressed surprise at the volume of litigation about mediation; their study showed a 95% increase from 1999 to 2003. 

While this rise undoubtedly is attributable to the increasingly widespread use of mediation rather than to any fundamental flaw in the process, the case law involving mediations offers important lessons for mediators, counsel and parties. 

While the courts rarely fail to enforce a mediated settlement agreement, this certainly has not stopped unhappy parties from engaging in expensive and time-consuming litigation that prolongs the dispute and strains relationships, precisely what the settlement achieved in the mediation was intended to avoid.