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Mediation in the World of Business Litigation

What is “Mediation” and why is it so important in today’s legal climate. The answer quite simply is- money! Mediation is a settlement technique whereby a neutral person, usually a retired Judge or perhaps a very experienced litigator, is asked to review each party’s documents and pro- offered evidence, and assists each side in reaching a compromised and considered settlement of a pending lawsuit or claim. Mediation can come at any point in time, either at the very beginning of a dispute or immediately prior to the scheduled trial of a matter after years of discovery and motion practice. It is most effective earlier in the litigation process before huge sums of money are expended for the exchange of discovery and before attorneys get deeply involved in motion practice and before deposition and expert fees become substantial.

At a time when attorney fees alone can be upwards of $700 per hour, even in New Jersey, the costs of protracted litigation can be staggering. The time to prepare a lawsuit and obtain the necessary discovery to properly prepare for litigation in court can be extraordinary. The courts are extremely busy so even when the case is properly prepared and ready to proceed it does not mean that the court will be available to hear your case or that your adversary will be also available and ready to proceed. It is not infrequent to have a case on the trial list and have it sit there for a significant period of time and then for the court to indicate that no Judge is available and that the case needs to be re-listed for a different date. That process can be repeated numerous times- especially when the case is a complex one and may take more than just a few days to try. So why can’t a Judge, sitting in a local or Federal Court, attempt to mediate, or try to settle a case? The answer is simply- “time”. A mediator is paid to spend time on your case and your case alone. They can meet with not just the attorneys but with the litigants themselves to attempt to get to a resolution of a case. Sometimes a litigant needs to hear from a neutral person about not just the upside of litigation but the potential downsides as well. Often time a litigant, and the attorney, has spent so much time and energy on a matter that they cannot see the whole picture and they lose focus on the potential for a less than stellar result. An unbiased Mediator can pull back the blinders and make both sides see the realities of the situation and possibilities of where this matter may be headed.

A number of vicinages in New Jersey have mandatory “Early Mediation” for Business Litigation. This has been a reasonably successful program for me and my business clients. It has saved my client thousands of dollars on legal fees and assisted them in an early resolution of matters that may have taken years to resolve. Speak with your attorney early about the possibility of an early mediation to your business dispute. It could be worth a huge amount of money to you.

Call 908-228-8800 and ask for either Mitchell H. Portnoi or Kyle S. Reed or complete our form to send us an email.

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