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WHEN TO MEDIATE

Posted on November 5th, 2013

This question is one of the first things counsel (whether plaintiff or defendant) must consider at the beginning stage of a case.  In my 36 years of litigation practice I have faced this question thousands of times.  As a mediator for the last 17 years I have seen how important it is for counsel on both sides of litigation to effectively grapple with this issue.

There is no absolute right answer as both sides to case need sufficient information before mediation can take place.  How much information?  In a personal injury case, with clear liability and small to medium damages, early mediation is a good idea if the parties have shared documents pertaining to damages or are prepared to do so.  An experienced and skilled mediator can assist in closing the case.  This can work before suit is filed.

Where the case is more complex the parties might want to consider facilitating the other in focused discovery that addresses disputed issues.  Medical malpractice, legal malpractice, real estate, contract disputes and others with complex issues would fall into this group.  It is the wise attorney (plaintiff and defendant) who cooperates with the other side in obtaining documents and depositions so that mediation is fruitful.  Once the necessary discovery is done, then mediation can proceed.  This of course requires a level of trust between the sides.

In cases where attorney’s fees are mandated by contract or statute (employment, discrimination, etc.), an early mediation can facilitate a settlement before the attorney’s fees exceed the provable damages.  A plaintiff case that is heavily laden with costs and fees is more difficult for the plaintiff to settle than one where that is not the case.  This difficulty also burdens the defense.

Early mediation is probably not indicated in a case with huge damages or where one or both sides have genuine questions about the strengths and weaknesses of the other side’s case or are seeking to develop factual issues to improve their positions on liability, damages or credibility.  Here the parties may wish to engage in vigorous discovery to flesh out these issues before mediation.  Once the key discovery is completed and the parties have taken their measure of each other on the key issues, mediation can help.

There is another category of cases where mediation should be deferred.  There are many cases, especially the ones where damages are small to medium, in which counsel let the files drift.  Here it may take an imminent trial date or mediation deadline imposed by the court to get counsel’s attention.  Once counsel are jolted to attention, mediation can proceed after counsel have done what they need to do to inform themselves and the other side about the issues.

It is important for counsel on either side of the case to grasp when a particular file may be profitably mediated.  It is also important for counsel to determine to what extent the other side in a case is amenable to mediation.  A simple phone call to other counsel might suffice.  The more thought regarding when a file should be mediated that an attorney puts into his or her case the more likely the correct decision will be made on this topic.

Mediation is an art, not a science.