Elder Law - When Mediation Fails and Litigation is a Must

Mediation does not always work. It is a voluntary process, and, for whatever reason, sometimes the parties involved just can't resolve their differences, even with the help of an experienced mediator. Since the mediator cannot impose a settlement on the parties but only facilitate a resolution, if one or more parties are adamant in their positions, unwilling to budge, and cannot see other points of view, mediation fails. It happens often, especially in highly emotional situations, as in elder law areas.

What is the next step if mediation fails? It's a trip to the courthouse to file a lawsuit. A lawsuit tells the other parties that the wronged party is serious about redress. Litigation is expensive, time-consuming and frustrating. It is not an easy road, but it is definitely a "heads up" to the defendant.

Sometimes just filing the lawsuit will get the attention of the defendant and prompt reassessment of the pre-litigation positions at an early stage. If not, then the discovery process, through which the parties exchange information, may also trigger a desire to resolve the lawsuit. Various pre-trial motions, such as motions to dismiss and summary judgment, can also create opportunities for settlement.

Statistics indicate that at least ninety percent of civil cases settle before trial, so that day in court may prove elusive. Even though the matter is in litigation, the trial judge will often order the case to mediation. Likewise, the court can require attendance at mandatory settlement conferences, where the judge can wield a heavy gavel to urge the parties to settle.

If the case does not settle, then it goes to trial. The parties tell their stories to the trier of fact, either a judge or a jury. That trier of fact then decides who wins and who loses. There is no "splitting of the baby." It is an all or nothing result.

Litigation is not without risk. Even though the parties want to "tell it to the judge," that may not be permitted. The rules of evidence apply in lawsuits, unlike on television. Facts that a party thinks are absolutely relevant may well be ruled inadmissible on any one of a number of evidentiary bases, providing an exercise in frustration.

When mediation fails, litigation is the next step. However, it's important to understand that litigation carries its own specific risks (and possible rewards). No one should ever go into "litigation mode" unaware.

This article is provided as information only and not intended as legal advice in any means or manner whatsoever, Attorney Adrian Philip Thomas provides focused legal counsel and representation within the area of Probate Litigation and has provided this for informational purposes only.