Page 48 - CLT060721

48 ■ JUNE 7, 2021 OPINION

■ From MEDIATION on PAGE 47 • Creative solutions will be explored that
the parties control over the outcome of their dis- could pave the way for a later settlement.
putes through negotiated settlements involving
compromises by all parties. Such give-and-take Takeaways
settlements enable the parties to maintain an Early, and perhaps multiple, mediations
ongoing, perhaps even enhanced, business rela- should be conducted prior to and throughout the
tionship or to terminate a relationship on a more life of a litigation. While a complete resolution
amicable basis. of the differences between the parties is the goal
Significantly, the terms of a mediated settle- of mediation, partial settlements, the refinement
ment and the negotiations related thereto are of disputed issues and the insights and informa-
confidential, and where there is media coverage tion gathered during a mediation far outweigh
of the matter, the parties may agree, as part of the minimal costs of participating in a media-
their negotiated settlement, to the content and tion. The two critical elements to a successful
terms of a press release that does not reflect nega- mediation are a skilled mediator and reasonable
tively on any party. participants who understand and want to man-
In instances where a complete settlement of age the risks and uncertainties of litigation.
disputed issues is not achievable, a settlement The parties do not give up anything by par-
of some issues or a narrowing of the issues to ticipating in mediation. If mediation does not
be litigated may be reached, following which, result in settlement, litigation (or arbitration, if
the parties generally are free to engage in litiga- selected by the parties) will proceed. The work
tion, including full-blown discovery and appeals. the parties will do to prepare for mediation will
Even where neither a partial nor a full settlement be required to proceed with litigation. Thus, the
is reached, the benefits of engaging in mediation mediator’s fee, which frequently is shared by
generally are numerous and include: the parties, is the principal cost of mediation.
• Each party will be forced to critically evalu- A completely successful pre-litigation media-
ate and refine the strengths and weaknesses tion will avoid significant litigation costs and
of its own positions and arguments, as well risks and will allow the parties to fashion a con-
as those of its adversaries; fidential business-minded resolution of their
• Each party will gain insight into and clarity differences. Any settlement prior to a trial ver-
regarding its adversaries’ arguments and dict will achieve these goals, with the financial
positions; savings diminishing as the trial nears. ■
• Each party will have the opportunity to
evaluate the performance of its adversaries’ Deborah A. Reperowitz is counsel at Stradley
counsel, and perhaps its adversaries’ wit- Ronon Stevens & Young and co-chair of the
nesses; firm’s bankruptcy, workouts and creditors’ rights
• Common positions and goals will be iden- group. She is a mediator and bankruptcy and
tified, which should streamline subsequent commercial litigation attorney. She can be reached
litigation; and at [email protected].

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