When Mediation Isn’t the Right First Move — Part I — Benson Mediation, Arbitration, Workplace Investigation

Knowing When Litigation Creates the Leverage You Need

If mediation is central to alternative dispute resolution, is it ever better to choose the alternative — litigation? The short answer is yes. But the answer requires discipline.

As a mediator, I see the benefits of negotiated resolution every week. Certainty. Control. Confidentiality. Finality. Those are not small things. But mediation is not a ritual to be observed at the first sign of conflict. It is a strategic tool. And timing matters.

The real question is not whether mediation is better than litigation in theory. The question is: What does this case need right now?

One of the most common reasons mediation stalls is the absence of meaningful risk. If one side believes its position is secure — legally, factually, or financially — there is little incentive to move. In those circumstances, mediation can feel premature.

Litigation has a way of sharpening risk.

A well-drafted complaint forces focus. A dispositive motion clarifies exposure. A discovery ruling narrows the field. Depositions reveal weaknesses that were previously theoretical. When uncertainty becomes concrete, negotiation becomes possible in a different way.

Until then, the numbers exchanged in mediation may reflect optimism rather than evaluation.