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Mediation: It’s Not Just for Litigants Any More

Mediation: It’s Not Just for Litigants Any More

Sometimes, practitioners who practice exclusively in one area of the law ought to wander aimlessly in the entrails of another area of the law.  You never know what you will find.  I did just that recently, and I stumbled upon Mediation Information Assessment Meetings (MIAM). MIAMs are a creature of family law—which is an area I have been increasingly visiting in the recent past.  The purpose of MIAMs is to assess whether mediation could be used to resolve spousal (or ex-spousal) disputes before they go to court.

While it has always been the case that parties can go to mediation before filing a lawsuit, it is rarely done.  All too often, parties believe that engaging in such efforts is a sign of weakness or that they will lose the element of surprise and surrender important advantages they might enjoy if they are the first to file.

While those concerns may be valid in certain cases, parties should in all cases consider whether pre-litigation mediation might be a useful exercise in facilitating resolution.  All too often, early resort to litigation stokes anger, causes parties to become entrenched in positions, and introduces players (litigation lawyers) whose first instincts are not directed toward resolution.

Concerns about proposing pre-litigation mediation can be addressed with thoughtful remedial measures.  The fear of showing weakness is an instinct that is appropriate in a relationship where one party seeks to dominate the other.  If the mediation concept is introduced as a measure designed to preserve and enhance an ongoing relationship, concerns about dominance can be abandoned. If litigation eventually results, you can dominate then.

As for the loss of strategic advantages, those can be preserved by a well-crafted standstill agreement that freezes the positions, rights and status of the parties, and prevents either party from using the lull in the battle to obtain strategic advantages.

Like anything else, the idea of pre-litigation mediation is not without risk, but if properly managed, much litigation and all of the attendant loss of time and money and destruction of relationships can be avoided.

Cary Ichter

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