ADR Mediation Checklist

Factors Favouring Mediation



A business relationship could continue or be resumed.


It is desirable for us to be able to control the outcome of  the dispute.



The position of each side has merit, and a trial could well result in either side's prevailing.



Trial preparations would be costly and protracted.



A speedy resolution is important to us.



The dispute raises highly technical or other complex  factual or legal issues which may be obscuring the real interests.



The law on the determinative legal issues is well settled.



We need to avoid an adverse precedent.



Publicity about the case or its outcome should be avoided.



No further discovery is required - or limited expedited discovery will suffice -for each side to assess its strengths and weaknesses.



The case lends itself to settlement before a trial court  decision.



A presentation by each side of its best case will help promote a better understanding of the issues.



A strong presentation will give one side or the other a more realistic attitude about the case.



A mediator could help diffuse the emotion or hostility which may bar a settlement of the dispute.



Neither side really wants to litigate.



You can see no good reason why the case should not settle.

































Factors Weighing Against Mediation



The amount in controversy is extremely large



A vital corporate interest is involved.



At least one side requires a judicial decision for its precedential value.



There is no bona fide dispute; the other side's case is without merit.



 The advantages of delay run heavily in favour of one side.



The case can most probably be settled in the near future through simple unassisted negotiations.



The other side has no motivation to settle (e.g. expectations of a large judgment, highly emotional stake in being vindicated).



More time must elapse before each side's positions and the settlement possibilities can all be evaluated.



Cases where one party requires full open personal vindication - some libel cases.



Cases involving crime or family (children) cases where the court's jurisdiction is paramount.




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