Mediation Message No. 78



As I’ve mentioned many times, preparation is the sine qua non for achieving mediation goals. One part of that preparation is to discuss with clients before (and not during) mediation the financial costs of ongoing discovery, possible motions and eventual trial or arbitration if the case should not settle.

In non-contingency fee representation, pre-trial and trial costs can be dramatic, more so if trial is far off and discovery has not been completed. Added to this are the possibilities that one party may bring discovery motions or a motion for summary adjudication or summary judgment and that expert witnesses may have to be consulted or retained. Even plaintiffs in contingency matters face increased costs, especially if much discovery is still to be conducted or expert witnesses must be hired.

Clients should be advised before mediation about future and potential costs so that they have sufficient time to determine if they have the means to pay or absorb those costs and to preliminarily evaluate the financial advantages and disadvantages of settling or going to trial. This analysis may certainly change at mediation, once new facts and arguments are presented, but, at that time, because of early input, clients should be better able to realistically evaluate the pros and cons of pre-trail resolution.

Early analysis of the continuing costs of litigation and trial also assists lawyers in deciding whether the risks of trial are or are not outweighed by the benefits of settling,

Judge Michael D. Marcus (Ret.)

ADR Services, Inc.

1900 Avenue of the Stars, Suite 250

Los Angeles, California 90067

(310) 201-0010

Copyright Michael D. Marcus, August 2012

Please visit my website at for information about my mediation and arbitration background and experience. Copies of my previous Mediation Messages and Arbitration Insights are available by going to the articles link on the website.

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