Are We Overusing Mediation?

In recent years, facilitative mediation has become a fixture of business litigation. In many business courts it is no longer a question of whether a case will go to mediation, but when. The goal is understandable: encourage settlement, reduce costs, and resolve disputes more efficiently. Those are worthwhile objectives. At the same time, lawyers and litigants inevitably adjust their behavior to the realities of the system. 

What I have observed is that the expectation of mandatory mediation can sometimes create unintended consequences. There appears to be a growing willingness to file cases that might never have been brought in the past because there is an assumption that the matter will settle before a court ever has the opportunity to dismiss it or before the parties incur the risks of trial. In some instances, the filing itself seems designed to create settlement leverage rather than to vindicate a genuinely meritorious claim. Additionally, mediation is an expensive process that sometimes does nothing but add fees. 

Perhaps that experience has shaped my perspective. I have always been selective about the matters I take on, and I do not accept cases unless I genuinely believe in their merits. For that reason, it can be frustrating to watch good companies spend substantial resources defending claims that everyone involved recognizes are weak, only to be ordered to mediate. Mediation undoubtedly has an important role to play in the modern litigation process, and many disputes are appropriately resolved through it. But when mediation becomes an automatic and unquestioned step in every business case, it risks encouraging the very kinds of filings that the legal system should be discouraging.