Mediation verges Litigation—a Risk Management Decision
By Randy Hall
So, you and your business partners truly believe there is absolutely no merit to that big lawsuit that has been languishing in civil court for months and months now. But you have just totaled what you’ve already spent on legal fees—and it appalls you. You’re just dealing with motion after motion—when does it all come to a halt? And, how did you get in this position anyway?
As a practicing trial lawyer for over 40 years in Tarrant County, TX, I have learned the immense value of mediation as a preliminary resolution tool in every type of claim or litigation. If you or your company have received some form of notification of a claim or have been served with a Petition and Citation, or you plan to file a lawsuit, you should begin as early as possible in your planning to consider the efficient and timely use of mediation as part of your strategy.
All cases have two sides, presenting different perspectives, emotional responses, sense of purpose and principles. Therefore, every lawsuit, or potential legal action, has the risk of failure which must be valued. Experienced trial lawyers will likely advise their clients that dispute resolution, including mediation, should be employed as early in the process as possible.
While there are various forms of dispute resolution, I have found mediation to be the most effective because the parties and their attorneys meet and are guided through their negotiations by a professional trained in dispute resolution. If the case is already in litigation, odds are the trial court will order the parties to mediate before the case is tried. Costs of litigating, like everything else, continue to rise.
Attorney fees can approach upwards of $700 per hour depending on the complexity of the case. Even if the case is taken on a contingent fee, associated litigation costs have also skyrocketed, and are usually the responsibility of the litigant. Depending on the complexity of the litigation, expert witness and court fees are formable, and the value of your time away from your business can also prove costly. This is why the vast majority of lawsuits filed are ultimately settled, mostly by mediation.
Your objective should be to conclude the litigation at the lowest possible cost in the most efficient manner. Mediation serves both purposes. By engaging in mediation early in litigation, parties can avoid the expensive and time-consuming process of pre-trial preparation and trial. With the help of an experienced and seasoned mediator, the parties can negotiate an equitable value for the case and avoid a potential adverse jury verdict. I have taken over 200 jury verdicts in my career, and I can attest that no matter how experienced a trial lawyer is, they cannot guarantee a favorable result at the courthouse.
You’re a pro—you evaluate costs and risk as you make business decisions every day. It only makes sense to do the same with any claim or lawsuit. Mediation is a valuable evaluation tool and a potentially economic and efficient resolution to any dispute, no matter how frivolous it appears and how much you believe that no one could ever take the allegations seriously.
About Randy Hall. He is chairman of the litigation section of Decker Jones, PC and a shareholder. He also is a mediator focused on dispute resolution as a sensible alternative to litigation in civil legal matters.
Published: Fort Worth Inc. Magazine 2018 here.