Can a case go to mediation if the matter is not in suit?  Absolutely.  However there are some guidelines and limitations that must be first considered by both parties and their clients.

Particularly in personal injury cases if there is insurance coverage, an insurance adjuster may consider mediating a case in the early stages after a claim is submitted to the carrier.  Even though the matter is not in suit, many times the handling adjuster is willing to take the matter to a pre-litigation mediation to resolve the case short of having to go through the litigation expense.  However, pre-litigation mediation is  generally for those smaller non-complex cases where the adjuster feels that sufficient information has been provided to properly evaluate the case.  For example, if you’re representing a plaintiff in an auto related and  liability is uncontested, you’ve provided photographs of the property damage and police reports to the adjuster,  the claimed  injury is minor, all treatment has been conducted, the plaintiff is now pain free, and the billings and complete medical records having been forwarded to the adjuster, than there may be a good opportunity for a pre-litigation mediation.  The adjuster may still require a statement  from the plaintiff before the mediation to find out the details of the claimed injury and/or to find out what type of witness the plaintiff will make. The adjuster may also want to confirm any lost earnings claim and/or residual complaints.  A simple stipulation between the parties can easily address any pre-litigation discovery issues prior to the mediation.

If the case  involves business matters or employment disputes such as sexual harassment or wrongful termination, it is likely that considerable formal discovery will be needed to flush out the issues and alleged damages. These types of cases generally are not resolved by way of pre-litigation mediation forums due to the sensitive and complex nature of the claims that generally require considerably more information to properly evaluate the case.