Caldwell & Kearns, P.C.
877-490-6665 717-743-1682

Protecting clients in the most complex legal disputes

Mediating from a position of strength

Most lawyers, and many sophisticated clients, have become fans of mediation for its efficacy and relative lack of expense in resolving disputes that would otherwise require litigation. How and when to use the very effective tool of mediation, however, remains a legitimate ground for debate. If the point of mediation is to avoid the morass of time and expense that often accompanies the discovery phase of litigation, why not go directly to mediation at the outset of a case? The answer, as in so many other instances, is "it depends."  ADR/Mediation

If the case is relatively simple and the key facts are known to both parties at the outset, early mediation may in fact be the right answer. But where the case is more complex, either in the network of facts establishing liability (or failing to do so) or in the quantification of damages, it can be more productive to mediate when there is a legitimate understanding of where full litigation might lead.

A lawyer advising a client as to when to offer or agree to mediation must assess where the balance of knowledge rests: if the client is in a stronger legal position than the opposing party, more knowledge of that advantage passing to the opposition before mediation is a good thing, since it increases leverage. If the client is in the weaker position, it may be better to mediate before all semblance of leverage is lost through discovery. Finally, if the balance of legal strengths in the case is "too close to call," by all means mediation should be seriously considered as an option which allows both parties to control their respective risks.

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Caldwell & Kearns, P.C.
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Harrisburg, PA 17110-1533

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