Mediation or Arbitration Before Trial: Do We Need It?
When clients first enter the civil litigation process, one of the most common questions they ask is:
“Will we need to attend mediation or arbitration before trial?”
The short answer is: In many cases, yes — but it depends on the court, the type of case, and any agreements between the parties.
Let’s break down what this really means and what you can expect.
Understanding Alternative Dispute Resolution (ADR)
Before diving into the requirements, it helps to understand the two most common forms of ADR:
Mediation
- A neutral third party (the mediator) helps the parties negotiate.
- The process is voluntary and non-binding—you decide whether to settle.
- It’s private and confidential.
- If both sides reach an agreement, it becomes a binding settlement.
Arbitration
- A neutral arbitrator acts like a private judge.
- The process can be binding or non-binding, depending on the agreement.
- Evidence can be presented, and a decision is issued.
- Binding arbitration results are usually final and cannot be appealed.
When Is Mediation or Arbitration Required?
1. Court-Ordered ADR
Many courts now require some form of mediation or settlement conference before letting a case go to trial.
This is especially common in:
- Personal injury lawsuits
- Contract disputes
- Business litigation
- Employment cases
Courts do this to:
- Reduce crowding on trial dockets
- Encourage settlement
- Save time and legal costs for all involved
If your case is filed in a court that mandates mediation, you will almost certainly need to attend before trial.
2. Contractual Arbitration Clauses
If your dispute involves a contract—such as a business agreement, lease, or consumer services contract—it may contain an arbitration clause requiring parties to resolve disputes through arbitration instead of litigation.
If the clause is enforceable, you may be required to:
- Arbitrate instead of going to court, or
- Arbitrate before continuing with litigation
These clauses are common in:
- Employment contracts
- Construction agreements
- Service and subscription contracts
- Real estate contracts
Your attorney will review the contract to determine whether the arbitration clause applies and whether it can be challenged.
3. Voluntary Agreement Between the Parties
Sometimes both sides simply choose to mediate or arbitrate because:
- The case is expensive to litigate
- A faster resolution is desirable
- Keeping the dispute private is important
- There’s uncertainty about how a jury will rule
If both sides agree, mediation or arbitration can be scheduled at any time.
Why Mediation Happens Before Trial
Even when not mandatory, mediation is often recommended because it:
- Saves time
- Reduces legal fees
- Gives you more control over the outcome
- Avoids the stress and unpredictability of trial
A successful mediation can resolve the entire case in a single day or even a few hours.
What If Mediation Fails?
If the case doesn’t settle:
- You move forward with litigation
- The court may set new deadlines
- Your attorney continues preparing for trial
Attending mediation does not weaken your case or force you to settle. You are always free to walk away.
Will I Need to Attend Personally?
Most courts require the actual parties—not just the lawyers—to attend mediation or settlement conferences because:
- Decisions need to be made in real time
- A negotiation without the decision-makers present is ineffective
Your lawyer will guide you through the process and handle all legal discussions.
Final Thoughts
Whether you’ll need to attend mediation or arbitration before trial depends on:
- Local court rules
- The type of case
- Any contracts involved
- Agreements between the parties
But in modern litigation, ADR is extremely common and often required. In many cases, it’s the most efficient path to resolving a dispute without the stress, cost, and uncertainty of going to trial.
Need legal help? In California, navigating legal challenges, whether they involve personal injury, workers’ compensation, criminal defense or civil litigation, can be overwhelming. Khoury Law Group is here to provide the critical legal support you need. As a leading advocate for individuals facing legal battles, our experienced attorneys understand the complexities of the legal system and are committed to fighting for your best interests. With personalized legal strategies and compassionate support, we are dedicated to achieving the justice and compensation you deserve.
CONTACT US FOR HELP. Call us at (888) 354-6879 or fill out the form on our Contact page.
