Businesses are increasingly mediating complex business disputes before filing lawsuits or going to arbitration. This is sometimes required as part of a “step” or “waterfall” clause providing for mediation as one condition precedent to litigation. Is requiring perhaps unwilling partners to dance a “check the box” exercise on the way to litigation? Is it simply too early?
I posit that requiring business parties on the brink of litigation to hit a controlled mediation pause button with the help of a business-oriented mediator and the right process and participants almost always makes sense. Using the techniques outlined here can make pre-litigation mediation successful in many more business disputes than lawyers might expect—to the likely delight of their business clients.
