In part because of the tough economic climate, the cost of litigation is, in many cases, rising. At the same time, many cash-strapped states are reducing courts’ resources. As a practical matter, this means that litigation – already criticized as a lengthy, expensive process – can take even longer and cost even more than parties originally expect.

One way to minimize the time and expense of litigation is to seek a resolution via mediation. Although pretrial mediation does not guarantee settlement, with some forethought and preparation, mediation can resolve even cases considered beyond compromise.

With that in mind, following are a few tips to help maximize results in mediation and perhaps make a difficult and expensive process a little easier.

1. Time mediation wisely. Are parties disputing what happened, or the effect of what happened? Does the case turn on discovering and interpreting the facts, or on how the law applies to known facts? In cases where the facts are fairly well-established, parties may want to mediate early in litigation, before conducting discovery. Discovery can be time and fee intensive, and it may not be necessary to resolve a dispute.

2. Select a mediator wisely. Mediators come in all shapes and sizes: lawyers, non-lawyers, current and former judges, and those with industry expertise. If the litigation concerns specialized issues – construction claims and processes, for example – the best option would be for a mediator to possess a background in the subject matter or issues at stake. Such background enables the mediator to quickly get up to speed on the issues in the case, and to confidently evaluate the relative strength of the parties’ legal positions, and to convey that to the parties as they negotiate. Mediators also have vastly different approaches to communicating with and between the parties. Some approaches may be better suited to the parties in some cases than others.

3. Use mediation as an opportunity to honestly evaluate a position. Prior to mediation, parties often submit mediation statements to the mediator (and, sometimes, to the opposition). These statements typically highlight the strengths in a case, along with the opposition’s weaknesses. The preparation of a mediation statement is an excellent time to sit down with an attorney, assess the strengths and weaknesses of a position, and discuss what it will likely cost to see the case through trial versus the likely cost of settlement. Even the strongest case might be worth settling, if a settlement can be reached for less than the cost of litigation.

4. Go into mediation with an open mind. Just because the opposition submitted a hard-line mediation brief with an astronomical settlement demand does not mean there is no chance of mediating the case to a reasonable resolution. Attorneys and clients may have their reasons for playing hardball before backing down to a more reasonable negotiating position. Be patient.

Even when mediation does not result in settlement, mediation is rarely wasted. The work that goes into preparing for mediation is excellent preparation for trial, and the mediation itself can provide an excellent sense of strengths and weaknesses for both sides.

Heather Lee is a member of Sussman Shank LLP’s litigation group. Contact her at 503-227-1111 or hlee@sussmanshank.com.

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If you asked a hundred people to describe the litigation process, one word I would bet you wouldn’t hear is “cheap.” Litigation can be a notoriously expensive process. Unfortunately, the tough economic climate has actually increased the cost of litigation in Oregon.

In an attempt to address the state’s budget woes, the Oregon Legislature this year approved new fees and fee increases for the state’s judicial system. The fee changes apply to any civil case filed from Oct. 1, 2009 through July 1, 2011, with limited exceptions.

Perhaps the most visible change under the new fee rules is the increased cost of initiating litigation.

Under the new system, a plaintiff that files a complaint must pay a separate fee for each additional plaintiff, and for every defendant after the first defendant named. The amount of money the plaintiff must pay per additional party is calculated on a sliding scale based on how much money is at stake in the lawsuit. The more money the case is worth, the more the plaintiff must pay. Third-party plaintiffs pay filing fees based on this same calculation. Defendants that respond to a pleading also pay a fee according to the sliding scale tied to the litigation’s value.

While these fee increases may seem mundane, they have the potential to pack a wallop. Businesses often are involved in multiparty litigation with significant amounts of money at stake.

These two factors drive up the cost of filing fees tremendously. For example, on my desk is a complaint filed in a fairly typical construction dispute, in which a single plaintiff seeks more than $500,000 against 18 named defendants. Under the former fee schedule, it would have cost the plaintiff $189 to file this complaint. Under the new fee schedule, however, filing fees for the same complaint exceed $3,800.

Once parties have initiated litigation, the new fee schedule also imposes fees at various stages of the litigation process, including fees for filing motions and having orders executed by a judge, and for services provided by the courts, including per-party fees for settlement conferences.

There are a couple of practical considerations related to these fee increases to keep in mind.

First, litigation counsel may require a higher retainer up front in order to cover increased fees. This is particularly likely if a lawsuit involves a large amount of money and/or is likely to involve multiple parties.

Clients also should sit down with their attorneys early in the litigation process to discuss which dispute resolution strategy makes the most sense financially. Alternatives such as mediation may mean court can be avoided entirely. Increased filing fees may be unavoidable, but an attorney can help develop a cost-effective litigation strategy.

Heather Lee is a member of Sussman Shank LLP’s litigation group. Contact her at 503-227-1111 or hlee@sussmanshank.com.

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