Making the Case for Early Mediation (CLM Magazine)

Making the Case for Early Mediation

  Thursday, October 20th, 2022 Source: CLM Magazine

Since building new courthouses and hiring more judges to reduce a pandemic-induced judicial backlog is not a viable or realistic solution, early mediation initiatives have become an easier and less costly way to work through the glut.

Although mediation has proven to be very successful in a variety of jurisdictions, one trend is constant: Mediation typically occurs too late in the life of most disputes. Reduce the time the case remains pending, and we can reduce the judicial labor and private and public costs. Here’s how to do it.

Mediators in more evolved jurisdictions report settlement rates ranging from 60% to 80% of filed cases. However, capturing data is hard, and government studies regarding settlement rates at mediation are problematic and may minimize the impact of mediation for several reasons.

The first is that mediation that is not court-ordered likely flies under the radar. Also, some cases do not settle during the formal mediation session, but the mediation reveals new information that leads to settlement a few days or weeks later, which means it’s unlikely to be counted as a mediation ‘win.’

Additionally, there are host of factors making data capture elusive. Insurance carriers should know what percentage of their claims settle through mediation, but none of them publish studies detailing their success in mediation across lines of business.

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