Unfortunately, conflict is a part of life, and serious conflicts can result in litigation if the parties are unable to reach a resolution early. However, even in instances where early settlement discussions have failed and the parties are now involved in the Court process, mediation can be—and often is—an effective tool for resolving a dispute.
What is mediation? Mediation is a non-binding process where a neutral mediator works with the parties and their attorneys for the sole purpose of reaching a settlement. The federal and state courts in Connecticut, as well as the Connecticut Probate Courts, have robust mediation programs. The parties can select a judge with no other involvement in the dispute to conduct a mediation on a specific date, and the parties usually file mediation position papers with the mediator in advance of the mediation to state their positions and educate the mediator. The parties are also free to pursue mediation privately with an independent lawyer or retired judge. Private mediation provides the parties with more flexibility regarding scheduling and mediator selection. Unlike “court-annexed” mediation, private mediators charge for their time.
Why does mediation work? There are a number of reasons why mediation is usually successful. First and foremost, the parties and their lawyers get an objective third party’s view of the case and the parties’ positions, and the mediator’s view is often persuasive because the mediator is a judge or highly-experienced lawyer with impressive credentials. Second, the parties often feel that they have received their “day in court” and been listened to by an objective third party, which paves the way for a resolution. Finally, the fact that the process is non-binding means that the parties have agency and feel more engaged in the process.
When is mediation most successful? Before mediating a dispute, the parties and their counsel should have a firm grasp of the facts and the relevant legal arguments. Every dispute is different, but it may be necessary for the parties to engage in at least some discovery—in other words, the formal exchange of information and documents, and perhaps depositions—before mediating so the parties are not negotiating in the dark. On the other hand, it is best to mediate before the parties have gone so far down the litigation path, and spent so much money on attorneys’ fees and litigation expenses, that the parties’ positions may have hardened to the point where trial is unavoidable.