Mediation in coverage disputes tends to arise in one of the following three contexts: a court orders mediation early in the case; the parties mediate pursuant to some prior agreement to mediate disputes before litigation; or the parties agree to mediate at some time after a dispute arises, and often after litigation is initiated. Generally, it is preferable for the parties to control the mediation process and to decide whether and when to mediate, and how to structure the mediation. When the parties are invested in the process, they are more likely to reach a negotiated settlement. The opportunity for a favorable settlement is enhanced if both the parties and the mediator are sufficiently prepared, if the mediator has the right expertise, and if the parties have the documents and discovery needed to value the case. Like any other weapon in the litigator’s arsenal, mediation can be an effective tool for obtaining the best possible result for a client if used properly and at the right time. Thus, counsel should consider when and whether to mediate throughout a dispute.
Certain trends in litigation and mediation are likely to affect the decisions that counsel make as to whether, when, and how to proceed with mediation. This article lays out some of these trends alongside certain principles to consider in approaching mediation. Ultimately, the advantage of mediation, so long as counsel considers the client’s best interests, is to resolve disputes efficiently and effectively—to minimize the cost of resolving a dispute and to do so in a way that allows the parties to set their own terms.