Save Your Cents- Early Mediation Makes Sense!

February 17, 2025

In today’s fast-paced world, traditional litigation isn’t just expensive—it’s often unnecessarily draining on resources, relationships, and mental well-being.  As a former litigator and now professional mediator handling employment, personal injury, real estate, and family disputes, I’ve witnessed firsthand how early mediation provides numerous benefits.  It can transform seemingly intractable conflicts into manageable solutions.

Employment Cases

California is known for its employee-friendly laws and complex regulations, which drive higher litigation costs.  For employers, attorney retainers may start at $15,000 to $25,000.  Expert witness fees typically range from $10,000 to $50,000, and deposition costs average $3,500 to $7,500 per deponent.  Total litigation costs through trial often range from $100,000 to $500,000.  FEHA discrimination or wrongful termination cases frequently exceed $750,000.  I previously litigated wage and hour class actions, which generated litigation costs over $1 million.

By comparison, private mediation of employment cases typically costs $4,000 to $10,000 for a full day.  It is highly recommended to schedule early mediation prior to discovery in employment cases.  This is distinct from personal injury cases, which typically need a certain amount of discovery before settling.  A key feature of employment cases is that if a plaintiff prevails at trial on even one employment claim (e.g. unpaid wages and/or FEHA), attorney’s fees are recoverable.  Thus, the settlement value of an employment cases can be predicted early on in the case.  Mediation briefs highlight legal claims and motions expected to be filed, and the mediator then evaluates and helps attorneys advise clients in more of a savvy way.

The most pertinent question for a business is not what it will cost to defend itself, but how many resources will be taken away from the business and what opportunities will be lost with litigation.  A typical employment dispute can drag through courts for 1-3 years, while mediation often resolves similar cases in 1-3 days.  During litigation, businesses face productivity losses from document gathering, depositions, and court appearances.  I recently helped settle a contentious lawsuit by asking the manager if he’d rather spend time doing what he loved (helping downtown businesses maintain their storefronts) or fighting a former employee’s lactation break allegations.  While no one thinks of settling as “winning”, being able to move on is.

Employment cases are particularly stressful for the terminated or aggrieved employee.  Former employees struggle with job searches as pending litigation raises red flags for potential employers.  I have seen former employees blacklisted from local markets due to the filing of a lawsuit, which could be avoided with confidential early mediation.

Real Estate Cases

California’s complex real estate laws and high property values significantly affect litigation costs.  HOA disputes typically cost $50,000 to $125,000 through trial.  I have litigated numerous construction defect cases, which often exceed $200,000 in costs.  Construction experts can be $15,000 to $50,000.  Title experts range from $5,000 to $15,000.  Recording fees and title searches are $2,000 to $5,000.  Property surveys are $5,000 to $15,000.

By comparison, full-day real estate mediation typically costs $3,000 to $6,000 for a basic landlord-tenant or neighbor dispute and $4,000 to $12,000 for a construction defect case.

Real estate cases are highly emotional when people live at the subject property or are otherwise attached to it.  I mediated a quiet title case involving a mother and daughter, and the underlying issues had nothing to do with the property trust, but rather a misunderstanding they’d had after a fight.  Before the property could be assessed, the emotional issues needed to be resolved.  This case needed more client talk, not lawyer talk, for mediation to be successful.  Good mediators are acutely aware that the real conflict is often different than the pleadings.

Personal Injury Cases

While most personal injury cases are handled on contingency fees for plaintiffs, understanding total litigation costs is crucial.  Total costs often range from $50,000 to $150,000 through trial.  Defense costs are easily $100,000 to $400,000 by trial, with complex cases or catastrophic injuries exceeding $750,000.

By comparison, full-day personal injury mediation typically costs $4,000 to $6,400, or up to $10,000 for more complex cases.  Resolution is usually possible in just one day, if enough discovery has been done and the injury has been stabilized for a couple months.

I have mediated many car accident cases where the plaintiffs did not seem overly concerned about the stress of litigation as their attorneys appropriately carried their burdens.  However, I had one case where an elderly woman got injured on an airplane and the humiliation and anxiety that accident caused her seemed to affect her daily tasks. The settlement achieved via a Mediator’s Proposal allowed her to move on faster than litigation would have, and the confidentiality of the proceedings preserved her dignity.

Family Cases

California’s high cost of living, complex community property laws, and abundance of stock option salaries increase divorce expenses.  Family law attorneys typically require initial retainers of $10,000 to $25,000.  Contested divorces average $50,000 to $150,000 per spouse through trial.  High-asset divorces in major cities such as Los Angeles and San Francisco often exceed $200,000 per spouse. Complex child custody battles add to these costs, with child custody evaluations ranging from $15,000 to $30,000. As a former family law judicial extern, I witnessed far too many estates depleted of their assets due to litigation.

By comparison, private divorce mediation typically costs $3,000 to $12,000 total, with mediator hourly rates ranging from $350 to $800 an hour.  Mediations can be scheduled by two-hour sessions or even all day.

The emotional toll of divorce litigation on families cannot be overstated.  Children of divorcing parents show better adjustment when their parents choose mediation over litigation, as it reduces conflict and promotes cooperative co-parenting.  Of course, there are times when mediation may not be appropriate, such as cases involving domestic violence or a narcissistic spouse, so it is wise to talk to a divorce coach, attorney, or other support person.

Early Mediation Makes Sense

Since March 2020, when offices had to shut down due to the covid-19 pandemic, early mediation has been used increasingly more and more.  Preparation is the key to success.  Mediators need to encourage lawyers to voluntarily call each other and exchange information separate from discovery for successful early mediation. Most effective mediators will reach out to counsel before mediation and have a brief mediation conference call to make sure everyone has the necessary documents to proceed.

Early mediation is not a sign of weakness, but rather, people and businesses want a larger measure of control over the result.  You may have a really strong case and still lose—- other people make the decision of what happens to you.  You may win at first, but then lose on appeal.  Everyone talks about the costs of losing, but there are also costs of winning. How long will it take and how damaged will you be?  When parties take control of their case, they make decisions on how the conflict ends and have a tremendous amount of dexterity for resolution because of the creative process and confidentiality of the entire process.

Early mediation also supports mental well-being.  The intangible stress of litigation takes a huge toll on people, so the sooner a case is resolved, the better.

Statistics consistently show that mediated settlements have higher compliance rates than court-ordered judgments.  This is because parties actively participate in crafting solutions, agreements address underlying interests, not just legal positions, and the process builds mutual understanding and commitment.

If you’re facing a dispute, consider what your true priorities are beyond compensation, how much time and energy you can invest in litigation, what relationships you need to preserve, and what creative solutions might satisfy all parties.  Mediation offers a confidential, cost-effective path to resolution that keeps you in control of the outcome.  Unlike litigation, where a judge or jury decides your fate, mediation empowers you to craft solutions that truly work for your situation. Have you had success with early mediation or would you consider it?