If an agreement can be reached, it is reduced to writing and signed by both parties. The mediation process can be invoked either before or after a dispute results in litigation. Because the objective is to settle disputes and avoid litigation, our firm has begun encouraging its business clients to consider mediation before filing a lawsuit. For example, we recommend mediation clauses in contracts over arbitration clauses as the most beneficial and proactive mechanism for initiating a dispute resolution. The mediation brings parties at an impasse into a process calculated at the inception of the relationship to save rather than sacrifice the relationship when a disagreement arises.
Businesses can also enter mediation through the judicial system.
In 1993, legistation in Virginia went into effect which confers upon mediation and other alternative dispute resolution proceedings a status intended to complement the judicial system. Under the new statute judges may, at their own initiative or at the request of one or both parties to a civil action, refer the matter, or a portion of it, to a dispute resolution evaluation session. We feel strongly that voluntary, prelitigation mediation offers the parties a better likelihood of achieving success because the institution of litigation and the adversarial exchange of correspondence that precedes a lawsuit tend to harden the positions of the parties, increase animosity, and, therefore, reduce the likelihood of an effective mediation. You may wonder why two lawyers would argue for a process of dispute resolution which is not litigation oriented. We believe that far from harming their practice, attorneys who are genuinely interested in helping business overcome adversity will earn the trust and confidence of existing clients, and attract new ones by assisting them in mediations, where appropriate, instead of bringing them into the courts necessarily.