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Just Resolutions

June 2023 - Early Dispute Resolution

A Former Litigator’s Perspective on Early Mediations

Felicia Harris Hoss


  • There is a general view among litigators that preparing to try a case is the best path to resolution in most cases.
  • A critical moment in a dispute is when lawyers and clients discuss litigation and ADR options.
  • It is helpful to understand what the client seeks, what the client understands the other side’s perception to be, and why.
  • The ABA Models Rules of Professional Conduct and other legal standards address the pros and cons of litigation compared to early dispute resolution.
A Former Litigator’s Perspective on Early Mediations
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“The best way to resolve a case is to be ready to try it,” is advice that I was given about mediation early in my career as a commercial litigator. Putting this in perspective, this was a period of time when mediation was still a relatively young development in the law, and it was a rather novel idea to mediate without a court order. At the time, it seemed the majority of mediators were former trial judges, whose judicial experience proved to be effective in mediations scheduled at a point when it was likely parties had two options: settle or try the case.

While approaches to alternative dispute resolution (ADR) have evolved, there seems to be a general consensus among litigators that has not really changed much over the years. That is, litigators still have the view that preparing to try a case is the best means to resolution in most cases. Trained for battle, many litigators instinctively are not predisposed to meaningfully discuss resolution with a prospective adversary before filing a lawsuit. In fact, it is common, for litigators also to advise their clients not to communicate directly with the other side. And, once a lawsuit is filed often there is little, if any, voluntary effort made by lawyers to schedule an early mediation for fear that such discussions could be misinterpreted as weakness until after discovery or the filing of a dispositive motion months or years later.

While these approaches advance a sound trial strategy, the reality is that most cases are not tried. In 2016, it was noted that “[l]ess than three percent of civil cases” are resolved through trial, “and that number may be high.” Indeed, much has been written over the years about the “vanishing jury trial.” In Harris County, Texas (Houston), statistics show that between 2019 and 2022 an average of 0.4% of cases were disposed by judgment on a jury verdict, 5.6% after a non-jury trial, and that 59.2% were removed from dockets with the plaintiff’s consent (through voluntary non-suits or agreed judgments).

It is to be acknowledged that some would-be defendants simply will not voluntarily engage in a dispute resolution process until a lawsuit is filed, and that there may be other legitimate reasons to file a lawsuit before negotiating with a prospective counterparty, for example limitations and venue concerns (e.g., winning the “race to the courthouse”).

Nevertheless, the costs of litigation are generally known and both institutional and individual clients are paying close attention. It is true that, in litigation (as in many things), time is money. For the client, the consequences of delayed resolutions are real and contemporaneous – they can be expensive, distracting, and hard on relationships and reputations. For the litigator, this may be a concern, but it is a concern for different reasons.

The efficacy of mediation is widely recognized. Because most disputes that are mediated do result in resolution, some have assumed this may influence a litigator’s approach to timing mediation. However, the suggestion baked into the assumption fails to appreciate the value of ongoing client relationships and the importance of referrals to a successful practice. Perhaps, more appropriately, a question of timing is less about a litigator’s possible conflict and more about the miscommunicated (or uncommunicated) expectations of a client’s goals for the representation.

The connection between the timing of ADR and its benefits is a conversation about the relative value of engaging in mediation early in the life cycle of a conflict. It is generally understood that most courts today require parties to mediate a lawsuit before trial, but by the time mediation on the courthouse steps occurs, the distraction, emotional strain, and financial investments have wearied many parties. Moreover, late-in-the-game mediations do little to alleviate the public’s investment in resolving private disputes. Indeed, “[t]here is little evidence that alternative dispute resolution procedures within courts have reduced the average time to dispose of civil lawsuits, or the average public or private expense to litigate cases” to conclusion. By contrast, in courts in which early mediation was mandated, there is evidence that litigant costs and court workloads were reduced and, importantly, participants were satisfied with the process.

This suggests that a critical moment in the lifecycle of a dispute is the moment at which lawyers and clients discuss the public (litigation) and private (ADR) options for dispute resolution. This is the point at which parties are still in the driver’s seat and can genuinely influence the path to their resolution.

It has been said that experience is the toughest teacher, giving the test first and lesson afterwards. This could explain why many seasoned litigants, such as businesses and law firms, incorporate dispute prevention and early dispute resolution clauses into their agreements with partners, suppliers, employees, consumers and the like. They appreciate the benefits of having more control over the timing and process of dispute resolution, and thus are proactive in avoiding the uncertainties, costs, and burdens inherent in litigation.

It would be misguided to assume that inexperienced litigants do not want the same things that experienced litigants want in a dispute resolution process or that they know what questions to ask when exploring dispute resolution options. A recent study concerning the general public’s understanding of ADR processes revealed that the lay public has “very low familiarity with, knowledge of, and experience with ADR processes.” What this indicates is that less experienced litigants, for example those involved in their first legal dispute or those without access to a contractual ADR provision, may relinquish control of a private dispute to the public legal system not because they want a fight, but because they are not aware of other dispute resolution options and how they compare against litigation.

At the outset of most client representations, it is helpful, therefore, to gain an understanding of (1) what outcome the client seeks and why and (2) what the client understands the other side’s perception of the situation to be and why. The responses to these two inquiries should provide a large-enough glimpse into the client’s “mind’s eye” to jump start a discussion about the differences between dispute resolution options and help the client make voluntary and informed decisions as to what process may best achieve her objectives.

In addition to helping litigators better serve their clients, there is another reason to proactively discuss dispute resolution options at the outset of a representation. The value of early candid discussions about the pros and cons of litigation as compared to early dispute resolution (EDR) options, as well as the role of client autonomy, are reflected in a number of legal standards, including ABA Model Rules of Professional Conduct, Rules 1.2 and 1.4, and Section 3 of the ABA Section of Litigation Ethical Guidelines for Settlement Negotiations (Litigation Guidelines). The comment to Model Rule 2.1 says that “when a matter is likely to involve litigation, it may be necessary under [Model] Rule 1.4 to inform the client of forms of dispute resolution that might constitute reasonable alternatives to litigation. Similarly, the Litigation Guidelines encourage lawyers to consider and discuss “with the client, promptly after retention in a dispute, and thereafter, possible alternatives to conventional litigation, including settlement.”

A lot has changed over the last couple of decades in terms of mediation’s role in litigation. Law schools now have robust ADR training programs and competitions, more former trial lawyers are providing mediation services, and the value of early mediation is becoming more widely known and accepted. But no matter how much time passes, dispute resolution is – and always has been – an imperfect process for which one-size does not fit all.

As to the advice I received as a young lawyer, recognizing that EDR is not appropriate in every case, the only thing I would change is the phrase “The best” to “One” – “One way to resolve a case is to be ready to try it.” There are two reasons for this. First, parties can only control one side of the conflict. And two, while the vast majority of cases are not precedential and will not be tried, some cases warrant public adjudication to establish legal standards and, thus, should be resolved through the public court system. For those cases, EDR provides a benefit too. When parties successfully resolve their conflict through EDR, they free up resources in congested courts to be assigned to more novel cases that warrant greater judicial attention and public resources. And, who knows, perhaps over time, stories will be written about the reappearing trial.

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