Deposition vs. Mediation: A Guide for Lawyers

In many legal contexts, it’s crucial to understand the differences between deposition and mediation, along with how each can be advantageous in a lawsuit. When two involved parties can’t reach an agreement, they might end up before a courtroom judge—but not in most cases. Civil trials can require massive outlays of time and money that leave both parties in a losing position. 

About 95% result in settlement through alternative dispute resolution (ADR) processes, including negotiation and mediation.¹ Overall, the ADR path results in lower expenses, less time, and more control over the outcome than at trial. 

Depositions and mediations are two of the most important vehicles to help you address matters outside of the courtroom. Below, we’ll take a look at deposition vs. mediation scenarios, and how and when each is employed. As a lawyer, knowing when to use each method effectively remains paramount to your success. 

Key Takeaways

• Depositions gather sworn testimony during discovery.
• Mediations help parties reach voluntary, non-binding settlements.
• Both aim to resolve disputes without full trials.
• Depositions are investigative; mediations are collaborative.
• Choosing the right approach can save time, cost, and conflict.

What Is a Deposition?

A deposition is an official interview with a potential witness that takes place during discovery. It’s a vital tool that aids legal teams in preparing for the next steps toward resolution. 

In order to be trial-ready, depositions must²:

• Have an officer of the court (i.e., court reporter) swear in the witness 
• Include a formal opening and closing statement by the court officer
• Be captured in a written transcript (even if otherwise video/audio recorded)
• Allow for cross-examination by non-deposing attorneys in attendance

The Purpose of Depositions

Depositions are the marrow of the discovery process, providing rich, primary sources of information from key individuals. Deponents may be eyewitnesses or have direct factual, character, or expert knowledge of the matter at hand. They serve to:

• Evaluate witnesses – In addition to helping fill in the five W’s—who, what, when, where, and why—depositions offer a practice run for witness selection. Attorneys can judge a witness’s potential value or harm to their case by seeing how they perform under examination and cross-examination. Is the plaintiff exhibiting nervousness, hostility, or calmness? Are their statements impacted by previous injury or accident-related concerns?  Does their demeanor suggest untruthfulness, ignorance, or mastery? 

• Add to the permanent record – A recorded and transcribed deposition can be filed, shared, revisited, and analyzed. It has the potential to be used before trial, at trial, and in appeal proceedings as a fixed record, rather than returning to a witness with a fading memory or changeable loyalties and interpretations.

• Inform strategy and negotiations – Depositions extract information and interpretations that help legal teams leverage testimony in personal injury cases as part of their trial strategy. More immediately, they’re key to settlement discussions, identifying strengths and weaknesses that aid in predicting jury outcomes in personal injury cases. 

• Back impeachment – If a witness materially alters their statements during trial, a deposition transcript and recording can be introduced to impeach their testimony. The plaintiff’s deposition can play a significant role in revealing inconsistencies that affect the trial outcome.

• Enhance efficiency – A formal, sworn testimony taken prior to trial greatly enhances the efficiency of legal resolutions, allowing both sides to refine their questioning, develop a strategy, and identify problematic issues before involving a judge. Plus, they’re key to negotiations that lead to settlement and keep the court dockets clear.

Who Participates in Depositions

While it’s a formal legal proceeding, a deposition isn’t open to the public. At a minimum, it’s attended by: 

• The deposing attorney
• The deponent (witness to be interviewed)
• A court reporter who can swear in the witness and transcribe the event
• Additional relevant attorneys (deponent’s and/or opposition’s)

Additionally, these individuals may be present:

• A legal videographer 
• Additional legal team or technology members

What Is Mediation?

In many cases, parties are encouraged to mutually discuss their issues to reach a satisfactory resolution. Mediation is an alternative to involving the court systems in a dispute, but a step beyond two parties negotiating between themselves. 

It includes a neutral party (the mediator) who facilitates the process but doesn’t serve as a judge. They may propose suggested solutions, but don’t possess any legal standing to decide on a matter or a preferred resolution.³

Additionally, mediation is non-binding. If it doesn’t result in agreement between the parties, they can move on to other methods, including trial. 

The Purpose of Mediations

The discovery phase of a legal case is similar to war planning—gather information, figure out loyalties, and come up with a strategy that minimizes your vulnerabilities while maximizing attacks on the opposition’s weaknesses. 

Mediation, on the other hand, values peaceful resolution for both parties without establishing a winner/loser endgame. It’s most effective at the start of a legal matter because it can sidestep: 

• Hardening of positions and the hostility that accompanies long-term active disputes
• Expenses of billable hours, travel, research, court reporters, videographers, etc.
• Time spent on discovery, trial preparation, and court proceedings

Who Participates in Mediations

A mediation’s cast of characters is determined by the governing body or the set of rules and regulations at issue. In general, attendees may include: 

• A neutral mediator, such as a member of the American Arbitration Association
• The two parties to the dispute
• Lawyers of each party (often limited to an advisory capacity)
• Representative of a relevant agency, such as EEOC⁴

Key Differences Between Depositions and Mediation

In the midst of discovery and legal proceedings, these two stages offer distinct benefits to both plaintiffs and defendants. Depositions and mediation can both help resolve a legal issue before or instead of trial, but they are very different animals. Key deposition vs. mediation dissimilarities include: 

• Function – A deposition is an investigative tool, while mediation is a settlement forum. 

• Confidentiality – Deposition transcripts must be provided to the opposition as part of the discovery exchange, and can become public if used at trial. Mediations, on the other hand, are private, protected negotiations.

• Evidentiary impact – Mediations are non-binding and don’t serve as evidence that can be leveraged at trial. On the other hand, a deposition is a sworn statement recognized as an official legal proceeding, and may be introduced in court if the deponent testifies against their interest, is unavailable at trial, or provides contradictory testimony at trial open to impeachment.²

• Compulsory nature – Depositions can be court-ordered, with a deponent in danger of contempt charges or fines if they refuse to appear. This compulsory stage, however, provides both plaintiffs and defendants a clearer picture of what to expect if they proceed to trial. Mediation is typically voluntary, although it can be a required step based on signed contracts or as part of resolution systems (i.e., for some bankruptcy courts).

Strategic Benefits and Limitations for Attorneys

While it’s possible to leverage both depositions and mediation for a legal matter, an attorney is more likely to choose or be channeled into one or the other. When there’s room to decide, consider: 

Deposition Pros and Cons

Should you jump straight into depositions rather than considering mediation? On the benefits side, depositions can: 

• Uncover facts
• Identify useful vs. harmful witnesses
• Build a case strategy and strength
• Provide leverage for pre-trial negotiation
• Serve as the basis for witness impeachment
• Help reduce case expense and time when leveraged in settlements

Deposition limitations include: 

• Cost – Effective depositions can cost into the thousands to cover hiring a court reporter and videographer, ordering official transcription, billable prep and follow-up hours, travel, room and equipment rental, etc.

• Time – While many can last just a few hours, an intensive or complex deposition can last as much as a seven-hour day (or even longer in some circumstances) on top of the time spent in preparation, scheduling, logistics, and reviewing and analyzing the results.⁵

• Resistance – If your deponent is reluctant or has a hard-to-pin-down schedule, you might be trying to squeeze the truth out of a combative or semi-responsive witness. 

Mediation Pros and Cons

How will mediation help or hurt your case? Its benefits include: 

• Cost – Since it can cut out both trial and discovery expenses, mediation can be the most economical type of dispute resolution. 

• First option – Mediation can occur right at the start, saving time on detailed discovery as well as trial. This helps keep costs and time contained and avoids further negativity.

• Client positioning – Its very name is nonconfrontational, helping mediation be part of a positive customer- or public-facing brand or persona.

However, mediation limitations include: 

• Motivation – Not everyone is compelled to prioritize an early or simple resolution. In a study of nearly 449 mediations by four major ADR providers, results showed that cases less likely to reach settlement during mediation were “those with the potential of a very large recovery and those for which it was not in the financial interest of one party to settle.”⁶

• Low protocol – Although the more informal nature helps reduce time and expenses, there are fewer strict legal protocols in place to protect your client’s rights or privacy. 

Choosing Deposition vs. Mediation in Discovery Strategy

Your best first step in deciding between deposition vs. mediation depends on multiple factors. Consider: 

• The type of case
• Your client’s goals
• Opposing counsel’s strategy
• Whether depositions are essential to fact-finding prior to resolution
• If mediation can support resolution without extended discovery

How U.S. Legal Support Enhances Both Processes

Since 1996, U.S. Legal Support has worked in concert with attorneys and firms of all practice sizes and types nationwide. Today, we can help you with all aspects of discovery, mediations, and trials, including the facilitation of hybrid tech support and legal proceeding platforms. 

In addition to remote deposition and deposition summary services, we can match you with a skilled professional from our nationwide network of 5,000+ court reporters. 

Plus, we offer interpreting, record retrieval and summarization, and analysis, litigation consulting, and trial support, including voir dire and jury research and consulting, mock trials, witness preparation, trial graphics, demonstratives, and trial presentation and technology services. 

Navigating Discovery Through Depositions vs. Mediation

According to the American Arbitration Association, mediated cases resolve about 8x faster than those in litigation.⁷ When efficiency is the top priority, mediation can be a wise first step once you understand your client’s case and position. 

Depositions come next for parties that can’t reach an early resolution, offering additional insights and grist for strategic decisions that can either lead back to the negotiation table or on to trial. 

Looking for aid with scheduling litigation proceedings? Reach out today to connect with U.S. Legal Support on your deposition, mediation, and other legal support needs.

Sources: 

1. The Law Dictionary. What Percentage of Lawsuits Settle Before Trial? What Are Some Statistics on Personal Injury Settlements? https://thelawdictionary.org/article/what-percentage-of-lawsuits-settle-before-trial-what-are-some-statistics-on-personal-injury-settlements/
2. Cornell Law School. Deposition. https://www.law.cornell.edu/wex/deposition
3. Cornell Law School. Mediation. https://www.law.cornell.edu/wex/mediation
4. U.S. Equal Employment Opportunity Commission. Questions And Answers About Mediation. https://www.eeoc.gov/questions-and-answers-about-mediation
5. Cornell Law School. Rule 30. Depositions by Oral Examination. https://www.law.cornell.edu/rules/frcp/rule_30
6. U.S. Department of Justice Office of Justice Programs. Effectiveness of Mediation: An Independent Analysis of Cases Handled by Four Major Service Providers. https://www.ojp.gov/ncjrs/virtual-library/abstracts/effectiveness-mediation-independent-analysis-cases-handled-four
7. American Arbitration Association. 2024 Infographic: Mediation. https://go.adr.org/rs/294-SFS-516/images/2025_Mediation_Infographic.pdf