Is the time right for a case to be mediated? Is it the right time to give your proposals and make your arguments? Is it the right time for your client to be in mediation? Mediation is as much about the timing of these items as it is about the negotiation itself. Is time on your client’s side?
As court dockets fill there are many mandatory mediation sessions or a judge may strongly suggest parties give mediation a try. When it comes to mediation, as much as the parties may want to get a case over with, a case is like fruit. If you try mediation before the case is ripe or too much time (and emotion) has passed and the case is overripe, success may be more difficult.
Timing is Everything, Even in Mediation
It depends on the nature of the case, the facts, the applicable laws, pending motions and their likelihood of success or failure, how close to trial the matter is and most importantly, the willingness of the parties to compromise. It’s difficult to decide when the case is just right, just ripe enough so that a settlement will taste good enough to the parties and they will leave satiated. The hungrier for settlement the parties are the earlier the case may ripen.
All too often much time, energy and money is spent during the litigation process and mediation is tried when a trial is just around the corner. With deadlines being faced and the uncertainty of trial looming ahead parties often take mediation more seriously. While the parties may be more willing to settle at this point both sides may have spent a lot of resources that may have been saved if the case settled earlier.
On the other end of the time frame mediation may be tried before the parties have engaged in full discovery leaving attorneys and parties guessing as to all the facts and the strengths and weaknesses of witnesses and evidence. Though discovery can be contentious, time consuming and expensive being able to obtain and review relevant documents and have depositions prior to a mediation can result in the case being seen by both parties in a different and more accurate light than what they expected at the outset.
If a mediation occurs too soon it doesn’t mean the time needs to be wasted. It can be an opportunity to exchange information, streamline discovery and prepare for future negotiations. You may be able to narrow the issues or make agreements on more minor issues which may help create some momentum next time.
One thing worth trying is reaching out to the other party’s attorney either directly or through the mediator. Ask if he or she feels that the case is ready to be mediated. Why or why not? The mediator can talk confidentially with both sides to find out if both sides are in the right position to enter into realistic negotiations. It may be worth a try.