The answer most likely is yes.  The simple fact is that civil cases rarely go to trial.  Statistics vary by court and jurisdiction, but the vast majority of all cases settle.  There are many good reasons to discuss settlement and you will receive some pressure from the “system” to settle.  Judge Crush in Hamilton County often said, “A trial is a failure of the system.” Trial tends to be a zero-sum game and it is flat expensive.

            Want to make the judge mad?  Tell her you won’t discuss settlement and label yourself for the rest of the litigation.   Settlement discussions are a given; actual settlement is reasonably certain in spite of how polarized the parties might be.

            I feel you should consider mediation as soon as both sides have enough verified information to make mediation meaningful.  When that occurs is individual to the circumstance.  You cannot make a reasonable settlement decision before you know your case and theirs.   Mediation should be considered once a reasonable objective range of outcomes can be foreseen.  Your range must realistically reflect the costs of litigation, the cost in your time, the cost of your staff’s time and the opportunity costs of you and your staff being pulled from your core business to comply with discovery requests and to attend depositions, hearings and trial.

            Mediation is a process where a neutral person mediates between the adverse parties, assisting in the exchange of information and honest case evaluation. This differs from arbitration, where findings and a judgment is made.  Arbitration, like trial, is usually a zero-sum game.  Somebody wins; somebody loses.

            Alternate dispute resolution should be considered in all cases.  Attorneys make too much money and litigants expend too much energy and money in discovery and motion practice when, statistically, the chance of a matter ever getting to trial is low.

            You should always discuss such matters with your attorney in detail and carefully consider his or her advice.  She has been in the circumstance before; you have not. 

            To attorney’s, I say,

“As a peace maker you have a superior opportunity to be a good man.  There will still be business enough.’  

                                                                        Abraham Lincoln

Stephen J. Schuh, Esq.

Schuh & Goldberg, LLP

513/321-2662