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Bar Association of San Francisco Member Benefits: Publications

Five Factors That Suggest a Case is Ripe for Mediation

 

By Guy Kornblum, Guy Kornblum & Associates

 

The dispute-resolution mechanism can be a laborious and often mysterious process. Mediation allows the parties involved in the dispute to sidestep the litigation process, using a neutral intermediary who guides the parties through the legal process. It is the mediator’s duty to work with the parties to agree on the terms for conflict resolution. Only if they want to, do the parties settle.
Here are five factors that suggest a case is one which should be mediated:

  1. The parties recognize they have more to lose than if they don’t settle. There is high risk if they do not settle. This means not only must there be a downside risk, but also the parties and their lawyers must recognize and understand that risk.
  2. There has been cooperation among the parties and their counsel during the litigation process. A case has a greater potential for settlement when the parties are “firm but fair” with one another, and cooperate without compromising their clients’ rights
    or position.
  3. The parties have engaged in sufficient discovery and an exchange of information so that you know the facts of the case. Each side can look towards the door of trial court and see how the case is likely to play out. It is the ability to anticipate the “end result” that allows a trial lawyer to properly advise the client as to the alternatives of resolution by trial.
  4. The parties have non-lawsuit reasons to settle. The existence of the lawsuit or a “bad” result may trigger losses in business relationships or a negative impact on a business marketing plan, and this can motivate the parties to seek a negotiated result.
  5. While the liability, damages or collection issues remain, there is no clear barrier to recovery and payment of any judgment by the plaintiff. A lawsuit is a three legged stool: liability, damages and collection. If the stool has strength in all three legs, then the parties should be talking seriously about resolving the lawsuit.

BASF Mediation Services Panelist Guy O. Kornblum has been a trial and appellate lawyer in San Francisco for over 40 years, heading his own firm for over 30 years. He has been involved in hundreds of mediations both as a mediator and as a representative of the client.

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