I’ve successfully mediated cases before suit was filed; after suit was filed, but before any discovery was conducted; after discovery was completed; while a jury was deciding a case; and while a case was on appeal.
It’s not just about timing. It’s also about information. And motivation.
I would say all of those cases were ripe for mediation at the time I was asked to mediate them. How can that be? Simple. In each case, the attorneys/parties had the right information, and a strong enough desire to settle, in order to make good decisions. Could those cases, which were further into the judicial process, have been resolved sooner? Possibly. But in retrospect, I don’t think they were ready until we mediated them.
In deciding whether to pursue an early mediation, the identity of my adversary matters to me. Early mediation works best when my opponent is someone who has a history of being realistic with clients from the outset. I think it is human nature to tell clients what they want to hear early in a relationship, and many lawyers seem to oversell the strength of their claims or defenses to their clients at the outset of a matter only to retreat to reality sometime later in the process. I have found that early mediation with serial oversellers is almost always a waste of time.
– M. Christian King,
Lightfoot, Franklin, & White, LLC
That said, don’t rush it.
In my opinion, some cases are mediated before they’re ready. There are times when judges (or clients) will order cases to mediation before the time is right — and very often, this can’t be helped. Good lawyers usually know when a case is ripe for mediation. If you think a case you’re handling isn’t ready for mediation, either because you don’t have enough information or there’s no appetite for settlement, consider explaining why to the judge — and/or your client.
Generally, I think mediation is most effective when all discovery has been complete; otherwise, too many issues can cloud the potential resolution, particularly medical causation issues. Also, I no longer agree to mediate until the defense has made a reasonable response to my initial settlement demand. This sort of separates who is serious about resolving the case and who isn’t.
– Robert L. Gorham,
Gorham & Associates, LLC
Follow your instincts.
Part of being a good litigator is knowing when the time is right to pursue settlement. Much of that knowledge comes with experience. Part of it’s related to “gut feeling” — which (as I mentioned in a previous post) should never be discounted as a critical component of good decision-making.
Mediating a case before it’s ready is the proverbial Square Peg in a Round Hole. It usually won’t work, so don’t force it.