Strategic Representation in State, Federal and International Mediation
Not every dispute needs to end in a trial or arbitration hearing.
Mediation can provide individuals, businesses and organizations with an opportunity to resolve significant disputes while retaining greater control over the outcome. When used effectively, mediation can reduce the cost, delay, disruption and uncertainty associated with continued litigation.
Thorgood Law Firm represents clients in state, federal and international mediation proceedings, including private mediation, court-sponsored alternative dispute resolution and mediation of civil and commercial disputes already in litigation or arbitration.
For nearly three decades, attorney Shamsey T. Oloko has represented clients in contested matters in New York State and federal courts and in alternative dispute resolution proceedings. That litigation experience informs our approach to mediation.
We approach mediation as advocates for our clients. Effective mediation requires more than appearing at a settlement conference. It requires understanding the facts, governing law, available remedies, litigation risks and the client’s objectives—and using that preparation to negotiate from a position of strength.
Mediation of Civil and Commercial Disputes
Mediation is a confidential dispute resolution process in which a neutral mediator assists the parties in attempting to reach a mutually acceptable resolution.
Unlike a judge or arbitrator, a mediator ordinarily does not decide which party wins. The parties retain control over whether to settle and on what terms.
Thorgood Law Firm represents clients in mediation involving:
We represent clients at mediation whether the dispute is in its early stages or has already progressed through substantial litigation or arbitration.
Federal and State Court Mediation and ADR
Courts increasingly use mediation and other alternative dispute resolution procedures to encourage parties to resolve disputes without trial.
Thorgood Law Firm represents clients in federal and New York State court-sponsored mediation and ADR proceedings, as well as private mediation conducted while litigation is pending.
Our litigation experience includes matters before New York State Supreme Court and the United States District Courts for the Southern and Eastern Districts of New York, as well as appellate proceedings and the United States Tax Court.
That experience can be particularly important in mediation because evaluating a proposed settlement requires understanding what may happen if the case does not settle.
We prepare for mediation with both possibilities in mind: reaching an acceptable resolution and continuing the litigation if the proposed resolution does not adequately protect the client’s interests.
Commercial Mediation
Commercial disputes can be particularly well suited to mediation because the parties often have interests that extend beyond the legal claims asserted in a complaint.
A business may be concerned about ongoing operations, customer relationships, ownership rights, confidentiality, reputation, future transactions or the cost and disruption of continued litigation.
A court deciding a lawsuit is generally limited to the remedies permitted by law. Mediation can sometimes give parties greater flexibility in structuring a negotiated resolution.
Depending upon the dispute, a mediated settlement may address payment terms, contractual obligations, future business relationships, confidentiality, ownership arrangements, termination of agreements or other issues important to the parties.
The objective is not settlement at any price. It is determining whether a negotiated outcome can accomplish the client’s objectives more effectively than continued litigation or arbitration.
International Mediation and Cross-Border Disputes
Commercial relationships increasingly extend across national borders.
When a dispute involves parties, transactions, contracts or assets in different countries, litigation can become more complicated and expensive. Questions involving jurisdiction, governing law, forum, enforcement, witnesses and evidence may substantially increase the complexity of the dispute.
Thorgood Law Firm represents clients in international mediation and alternative dispute resolution involving cross-border commercial disputes.
International mediation can provide parties with a flexible forum for exploring resolution without requiring every issue to be adjudicated in national courts or through a complete international arbitration proceeding.
These matters may involve:
Where international arbitration is already pending or contemplated, mediation may also be used in an effort to resolve the dispute before a final arbitration hearing and award.
Mediation During Litigation
The filing of a lawsuit does not eliminate the possibility of settlement.
In many cases, mediation occurs after the parties have exchanged pleadings, conducted discovery or litigated significant motions. At that stage, the parties may have substantially more information with which to evaluate their respective positions.
Timing can matter.
Mediating too early may mean the parties lack the information necessary to realistically assess the case. Waiting too long may result in substantial litigation expenses that could have been avoided.
We evaluate mediation as part of the broader litigation strategy and consider when the process is most likely to be productive.
If mediation does not produce an acceptable resolution, we remain prepared to continue litigating the case.
Mediation During Arbitration
Parties involved in arbitration can also use mediation.
An arbitration agreement does not ordinarily prevent the parties from attempting to resolve their dispute voluntarily. Mediation may occur before arbitration begins, during discovery or other preliminary proceedings, or as an arbitration hearing approaches.
In appropriate circumstances, mediation can provide an opportunity to resolve the dispute while preserving the parties’ ability to proceed with arbitration if settlement is not achieved.
Our experience in both arbitration and mediation allows us to evaluate the two processes as complementary parts of a broader dispute-resolution strategy.
Preparing for Mediation
Effective mediation begins well before the mediation session.
We work with clients to identify the strengths and weaknesses of the case, understand the opposing party’s likely position, evaluate potential outcomes and determine what terms would constitute an acceptable resolution.
Preparation may include:
A party that understands its case and alternatives is generally better positioned to make informed decisions during negotiations.
Negotiating From a Position of Preparation
Mediation should not be confused with simply compromising.
A strong mediation strategy begins with knowing what is likely to happen if the case does not settle.
That requires realistic analysis of the evidence, applicable law, potential remedies, litigation costs and risks facing both sides.
Our experience representing plaintiffs and defendants in litigation helps us evaluate a dispute from multiple perspectives. We seek to identify both the pressure points that may lead to resolution and the issues on which compromise may not adequately protect the client’s interests.
The willingness and ability to continue litigating or arbitrating a dispute can itself be important to effective negotiation.
Why Consider Mediation?
Mediation can offer several potential advantages over continued litigation or arbitration.
Depending upon the circumstances, mediation may provide:
Mediation does not guarantee settlement, and it is not appropriate for every dispute.
The relevant question is whether mediation offers a realistic opportunity to achieve a result that compares favorably with the risks, costs and potential outcomes of continuing the contested proceeding.
Mediation and Settlement Agreements
Reaching an agreement at mediation is only part of the process.
Settlement terms should be sufficiently clear to resolve the dispute and avoid creating new disagreements.
Depending upon the matter, a settlement agreement may address:
Careful documentation is particularly important in complex commercial and international disputes.
Frequently Asked Questions About Mediation
What is mediation?
Mediation is a process in which a neutral third party assists parties in attempting to negotiate a resolution of their dispute.
The mediator facilitates negotiations but ordinarily does not decide the dispute or impose a settlement.
The parties retain the ability to accept or reject proposed settlement terms.
What is the difference between mediation and arbitration?
The principal difference is who controls the outcome.
In mediation, the parties decide whether to settle and on what terms. The mediator helps facilitate negotiations but generally does not issue a binding decision.
In arbitration, the arbitrator or arbitration panel hears the dispute and ordinarily issues an award deciding the parties’ rights.
Mediation and arbitration can also be used together. Parties involved in arbitration may attempt mediation before proceeding to a final hearing.
Do I need an attorney at mediation?
Although the circumstances vary, legal representation can be particularly important when mediation involves substantial legal or financial interests.
An attorney can evaluate claims and defenses, explain the consequences of proposed settlement terms, prepare a negotiation strategy and help determine how a proposed settlement compares with the risks and potential outcomes of continued litigation or arbitration.
Can a case be mediated after a lawsuit has already been filed?
Yes.
Mediation frequently occurs after litigation begins. It may take place early in the lawsuit, after discovery, following important motions or as trial approaches.
Courts may also refer cases to court-sponsored mediation or other ADR programs.
Do you handle federal court mediation?
Yes. Thorgood Law Firm represents clients in federal mediation and alternative dispute resolution proceedings, including disputes pending in the United States District Courts.
The Firm’s broader federal litigation experience includes matters in the Southern and Eastern Districts of New York.
Do you handle international mediation?
Yes. Thorgood Law Firm represents clients in international mediation and alternative dispute resolution involving cross-border commercial disputes.
International mediation can be used independently or in connection with pending or contemplated international arbitration.
Is mediation confidential?
Mediation is generally designed to provide a private setting for settlement discussions, but the precise confidentiality protections can depend upon the governing agreement, applicable rules, court program and circumstances.
Parties should understand the applicable confidentiality provisions before the mediation begins.
What happens if mediation does not result in a settlement?
If the parties do not reach an agreement, the underlying dispute generally continues.
A pending lawsuit may proceed through discovery, motion practice and potentially trial. An arbitration may proceed toward an evidentiary hearing and award.
An unsuccessful mediation does not necessarily mean the process lacked value. It may clarify the issues, reveal the parties’ priorities or create a foundation for later negotiations.
When is the best time to mediate a dispute?
There is no single point that is appropriate for every case.
Some disputes can be mediated effectively before litigation begins. Others require document discovery, depositions or resolution of preliminary legal issues before the parties can realistically evaluate their positions.
The appropriate timing depends upon the nature of the dispute, information available to the parties, litigation costs, urgency and likelihood that meaningful negotiations can occur.
Is a mediated settlement enforceable?
A properly documented settlement agreement can generally create binding contractual obligations.
The particular requirements and enforcement mechanisms depend upon the agreement, applicable law and procedural posture of the dispute.
For that reason, settlement terms should be carefully documented, particularly when the resolution involves significant financial obligations, continuing contractual duties or cross-border relationships.
Experienced Mediation Representation
Thorgood Law Firm brings nearly three decades of litigation and dispute-resolution experience to mediation proceedings.
Our experience encompasses New York State and federal litigation, commercial and civil disputes, appellate proceedings, U.S. Tax Court litigation, arbitration, mediation and international alternative dispute resolution.
We represent clients in private, state, federal and international mediation, including matters already pending in litigation or arbitration.
Our objective is not simply to settle a case. It is to determine whether a negotiated resolution can protect the client’s interests more effectively than continued litigation or arbitration—and, when it can, to pursue that resolution from a position of preparation and strength.
Speak With a Mediation Attorney
If you are considering mediation, have been directed to participate in court-sponsored ADR, or are involved in a domestic or international dispute that may be appropriate for negotiated resolution, careful preparation can materially affect the process.
Thorgood Law Firm represents individuals, businesses and organizations in state, federal and international mediation proceedings involving significant civil and commercial disputes.
Contact Thorgood Law Firm to schedule a consultation regarding mediation or alternative dispute resolution.
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