Heads up, solicitors – there’s a new kid in town. Advanced mediation is the latest trend in dispute resolution, and you would be wise to accept her friend request.
Advanced mediation is different from the mediation most lawyers are familiar with because it happens outside of litigation. It typically involves parties with an ongoing relationship who want to resolve a dispute before it becomes (too) acrimonious but are unable to do so on their own. Think business partners who can’t agree on how to wind up their business, a dispute involving a commercial tenant, or a subcontractor who refuses to complete the job.
When calls come in from clients with similar issues, the modus operandi of most solicitors is to refer them to litigators. The referral is made with a hint of dread, in case a contract they drafted gets ripped to shreds by their litigator-friend or, far worse, by a judge. Could advanced mediation be a better mousetrap?
It’s certainly gaining traction. Proponents will tell you that it gets results and preserves relationships. Parties are not yet entrenched and are motivated to settle and move on. They haven’t yet spent countless dollars on legal fees. They can negotiate creative business solutions not typically available in the courtroom. And they can get back to focusing on what matters most – running their business – far more quickly than with litigation.
So what’s the catch? To most of us, advanced mediation is unknown, and questions abound. How can parties assess the true strength and value of their claims outside of the litigation process? Can it be used strategically to gather information for use in subsequent litigation? And every lawyer’s worst nightmare: what if I bust a limitation period by referring to a mediator instead of a litigator? Allow me to put your mind at ease (bearing in mind the typical disclaimer: this is not legal advice!).
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