The minitrial is fair, private, quick, and cheap. If done before a formal lawsuit is filed, however, there is really no way to know if your opponent is concealing damaging evidence, and there is no certainty of decision, as either party may refuse to cooperate despite the opinion of the panel. Sometimes there is no need for lawyers in mediation, although their training in marshaling and presenting facts can be very helpful. Usually the mediator will make private inquiries of each party regarding undisclosed facts, and, while keeping such facts confidential, will take them into account in shaping the mediation process or any ultimate recommendation. Such secrecy can be a distinct advantage for each party, and know that one's secrets will not be disclosed to the other party often allows one to be more forthright about the actual settlement value of the case.
Mediation can come at any time during a dispute, before or after a formal lawsuit is filed.
In virtually all cases actually filed, the Court itself will try to mediate a resolution under the name of Conference on Status of Settlement, or Final Pre-trial conference, or something similar. There is no essential difference whether it is ordered by the Court or it is suggested by one of the parties before reaching Court. Mediation is fair, private, quick, and cheap, but it lacks any certainty that a resolution will be reached or can be enforced. The Lane Report is a publication of The Law Offices of Marc J. Lane, a Professional Corporation. We attempt to highlight and discuss areas of general interest that may result in planning opportunities.