In an ideal world, parties would agree to mediate as soon as possible after their disputes occurred. In the real world however, parties often do the opposite and wait until the very end, maybe even until the eve of trial.
Concessions can often occur when one side is faced with a deadline, and for most litigants the deadline does not occur until they are faced with a vastly approaching trial. Most people want to avoid the uncertainty of trial, and as they get closer to that moment of truth they become more inclined to compromise.
A more reasonable way to handle this stress is to mediate before trial, which addresses the question: Is there a right time to mediate? If so, then when?
Early Mediation.
Many cases may benefit from early mediation and may in fact settle earlier because of a proactive approach. An early mediation can be an opportunity for litigants to reconsider an ill-advised lawsuit. If the case is a "weak" one, the plaintiff may want to settle before a significant amount of time and money have been put into it.
Even the stronger cases will sometimes lend themselves to an early mediation. For example, an injured plaintiff may be interested in an early settlement in order to alleviate the stress of a financial hardship. But in such situations lawyers and claims adjusters will first have to investigate the facts, do necessary discovery, perhaps find expert witnesses, and allow the defense the opportunity to evaluate the claim.
To effectively mediate early in a dispute, the parties must accelerate their preparation, must be willing to compromise, and most importantly must be willing to weigh out the pro's and con's of an early mediation.
Court-Ordered Mediation.
Courts will (depending on State laws and types of claims), order mediation and send parties to mediation. Court ordered mediation generally takes place when the judge feels there is an opportunity for a solution to be reached rather than simply making a ruling. Mediation is often ordered in family law cases as the parties are so intimately involved.
If court ordered mediation occurs, counsel should try to leverage the mediation as an opportunity to exchange information and lay the necessary groundwork for future negotiations. Oftentimes court ordered mediation opens the pathway to negotiation and results in a mutually beneficial settlement. It also avoids the dreaded decision-making process by the courts.
Speak with Opposing Counsel.
If you are considering mediating and trying to determine when is the right time to mediate, the best way to find out may be to converse with opposing counsel. By discussing notes and the case together, counsel may determine that the case is ready to settle or may determine the appropriate timeline for settlement.
These discussions and open lines of communication between parties may be helpful in understanding the motivations regarding settlement, potential obstacles to settlement, or other important information that may have been overlooked. A mediator may also be involved at this moment to schedule confidential calls with parties in an effort to find out if they are ready to resolve the case.
It is important to note that no mediation should ever be undertaken unless both the lawyer and the client are prepared to make a reasonable compromise. This of course is applicable to all parties of a dispute. Litigants must realize that almost every lawsuit involves risk, and parties who are determined to “win” are typically wasting time.
The purpose of mediation is to obtain a settlement that may save both sides of the dispute time, stress, mental health, expenses associated with litigation, and other unforeseen, adverse effects. The mediator aims do their best to strike a deal between the parties. Sometimes this includes talking about the particular case with each side and discussing both sides the weaknesses and strengths of their case. Other-times this includes a list of concessions the parties are willing to make. Keep in mind that everything that is said at mediation remains confidential.
If the case settles at mediation, both sides are accepting the terms of settlement but may not get everything they want. The most important element to remember is mediation is done in good faith. All parties will have to make concessions to get to an agreement. Mediation is a good time for the parties to take a deep look at their case (the pluses and minuses) and see if settlement can be achieved before the case is put in the court and jury’s hands.