By Hon. Angela C. Robinson
My law students are often surprised to learn what most practicing attorneys already know – that the overwhelming majority of disputes are resolved without lawyers and without lawsuits. As those of us in the legal profession know well, only a small percentage of disputes end in formal litigation. And an even smaller percentage of those disputes are resolved by trial.
Given this, it is remarkable that so few lawyers use pre-litigation mediation to resolve their cases. Of course, this process won’t work for every matter, but knowing which cases to mediate early, pre-suit, can save you and your clients thousands of dollars and hundreds of hours.
I first learned how effective early intervention is when I was the Civil Presiding Judge in New Haven. The Civil Docket in New Haven routinely had around 12,000 pending cases – an impossible number to provide trials for. Therefore, we used the Early Intervention Program (EIP), to bring parties, adjusters and their lawyers in to discuss settlement within a few months of the filing of the cases. The goal was to separate those cases that genuinely required litigation from those that could be settled without standard discovery. Technically, these cases were being mediated post-filing, but the same rules to pre-suit mediation applied to them. Since my retirement from the bench, I have been able to successfully resolve several cases, before they were filed or shortly thereafter, using these rules.
There are a number of factors to consider when determining whether to use pre-suit mediation:
(1) Is the case a matter that involves straightforward and non-complex legal claims?
a. Pre-suit mediation works best on simple claims with easily calculated claims of damages.
(2) In personal injury claims, has the plaintiff completed medical treatment; are the medical records complete; has the injured party received a permanency rating?
a. Pre-suit mediation is the ideal method to resolve disputes when the medical records for treatment are complete or close to complete.
(3) Do the contested damages include claims for the intangible – like emotional distress or pain and suffering?
a. Because damage claims for intangible things like permanency or pain and suffering are more difficult to calculate, it is harder (but not impossible) to resolve cases alleging these through pre-suit mediation.
(4) Is there only one disputed issue?
a. The fewer the disputed issues, the better the case is for pre-suit resolution.
(5) Are the parties in an on-going relationship that must continue to exist after the dispute is resolved?
a. Pre-suit mediation is ideal in cases when the parties want or need to maintain a healthy and professional on-going relationship.
(6) Is the case similar to other disputed cases that have been resolved by trial?
a. If your case is similar to other litigated cases that have resulted in a clear verdict or settlement range, then you should definitely consider using pre-suit mediation.
(7) Is time an important factor to one or more of the parties?
a. When time is an important factor, pre-suit mediation will provide a better and faster process.
(8) Will the emotional cost of litigation cause an extreme hardship for one or more of the parties?
a. Often, parties do not expect how difficult it can be to endure months or years of litigation, let alone how emotionally taxing sitting through a trial can be. The intangible costs of going through litigation should be carefully weighed and considered.
As we prepare for the next Judicial Calendar Year (which begins with the new judicial assignments on August 31, 2024), now is the perfect time to review your client list to search for matters that might benefit from pre-suit mediation. In fact, you might want to consider adding a tickler system which alerts you to consider pre-suit mediation: (1) before filing and action; (2) shortly after filing an action; and (3) when discovery is complete.
If you are interested in reserving time with me for pre-suit or post-suit mediations, you may use the link below to book time on my calendar. Or, if you are simply interested in learning more about pre-suit mediation, you may reach me at robinsona@halloransage.com.
Booking link for Mediations with Judge Robinson: https://outlook.office365.com/owa/calendar/MediationswithJudgeRobinson@QuinnipiacUniversity.onmicrosoft.com/bookings/