Before we talk about mediation and the value of early mediation, let’s start with two key questions to ask yourself about your dispute:
- How quickly do you want to get your dispute resolved?
- Is most of the relevant information needed to resolve your dispute the kind that is (a) freely available or ascertainable and (b) are the parties willing and able to exchange it voluntarily and without delays?
If the answer to question 1 above was as soon as possible or in less than 6 months, and the answers to question 2 were (a) yes and (b) yes, then it’s worth your while to keep reading about early mediation (and to check out our 3-D Mediation model). If you want your dispute to drag out over at least two years and you and/or the other side in your dispute want to play “hide the ball” with what you think are key pieces of information and disclose it at that pivotal “Hollywood moment” in your case, you can stop reading now. Rest assured you’ll have plenty of time to watch those lawyer/trial TV dramas and movies over the next few years, while your case meanders through the civil procedure process.
Here’s some background information about traditional mediation for the purposes of this article. (If you want to learn more about mediation, please see our Whitepaper, eBooks, or other blog posts about mediation on our website.) Mediation is an effective way of resolving disputes that are right for mediation. It is a voluntary process, in which the parties agree upon a neutral person, usually a lawyer, trained as a mediator, to help them, and their lawyers if they have lawyers, work toward resolving their dispute. The mediator is a facilitator of the negotiation process designed to reach a mutually acceptable resolution. The mediator is a neutral party, cannot give either side legal advice, and cannot ultimately determine the outcome. The dispute is resolved when the parties reach an agreement as to what the elements of the resolution will be and the terms of their agreement are reduced to a written settlement agreement.
There are different styles of mediating, some variations on the structure and the timing of the mediation. This timing and structure of the mediation is vitally important to the parties, but they are rarely consulted about structure or timing before the mediation takes place. This is where we go back to those initial questions and where early mediation comes into the picture.
The traditional litigation track with mediation at the end:
Most lawyers, especially litigators, view mediation as a part of the litigation process. They see it as a step that follows other procedural steps like “pleadings” (in which one party files a complaint in court and the other side files and serves an answer), “discovery” (a formal process for exchanging information), and “motion practice” (in which both sides’ lawyers submit written legal arguments to the judge about the applicable facts and law and ask the judge to make rulings about them.
After these steps are completed (about two years or so after the lawyers were hired), lawyers will often suggest using mediation to settle the case. This is an alternative to going to trial and leaving the matter up to an unpredictable jury to decide. This is usually the first time the lawyers have a meaningful discussion with their clients about the mediation option. By this time, a few things have happened that would also make the client receptive to the idea of mediation:
- The clients, who were probably all pumped up and ready to go to war with the other side when they first came to the lawyers, are now emotionally weary of the matter and don’t want any more of their energies, resources or emotions drained by this process, but want to get it over with;
- The clients have come to realize that their case was not the ironclad, “slam-dunk” case they thought it was at the beginning;
- The clients do not want to spend any more time and money on this case, having done so to the tune of thousands of dollars and two years or more already, with a trial looming six months or more in the distance that will likely cost thousands more;
- The clients are concerned about an unpredictable jury deciding this case based on things that might sway the jury a certain way, things other than the facts and the law.
Usually, by this point, there is willingness on both sides to consider mediation. This is usually a full day event with the mediator shuttling between the parties for most of the day in a caucusing style negotiation process, controlled by the mediator.
There is another factor in this traditional all-day mediation structure. Around 4 o’clock or so, or close to what is perceived as the end of the day, there is an unspoken, unconscious but noticeable stress the parties feel to get the matter settled that day. They do not want to leave the all-day negotiation without having a settlement reached. This is not a pressure coming from one side or the other, but one that is inherent in this type of all-day mediation process, especially when one or more of the parties traveled a great distance to get to the mediation. And so around 5 pm, at the end of the all-day mediation process, the parties feel they have to settle. And they usually do.