The Right Time To Mediate
I recall going to a mandatory settlement conference (“MSC”)in San Francisco shortly after the court had instituted the program. At the end of the conference, at which the case did not settle, the judge remarked that the MSC program was still experimental and might not be made permanent. He added that in his opinion an MSC was not necessarily a good idea for every case because lawyers and their clients would still settle cases when they were ready and not necessarily when a judge told them to.
Of course we all know that times have changed. As dockets have become increasingly crowded, courts have found more and more ways to encourage (if not compel) parties to settle cases. Mediation is now one of the tools that courts use. Even as times change, however, human nature remains the same. Regardless of when the parties may be sent to mediation, cases are more likely to settle when the time is right.
In a perfect world parties would agree to mediate and settle as soon as possible after their disputes arose. In the real world they are often inclined to do the exact opposite and wait until the eve of trial. It is a time-honored principle of negotiation strategy that most concessions can be obtained when the other side is faced with a deadline, and for most litigants the deadline does not occur until they are faced with going to trial. Most people want to avoid the time, expense and uncertainty of trial, and as they get closer to that moment of truth they become more keenly aware of those realities.
Many cases can be and are settled earlier, but only after the lawyers have had time to do some investigation and to make an intelligent evaluation of their client's position. If the parties are sent to mediation before counsels have completed their work, the chances of settling at that time may be significantly less.
So what is the right time to mediate? The answer is different in each case. The best way to find out is probably to talk to your adversary. Find out if he or she feels that the case is ready to be mediated, and the reasons why or why not. It can also be helpful to have the mediator talk confidentially with both sides in advance to find out if they are both ready to enter into realistic negotiations.
If the court insists that the case be mediated before you feel that it is ready to settle, then try to use the mediation as an opportunity to exchange information, streamline discovery, and lay the groundwork for future negotiations. Most importantly keep in mind that many cases can be settled, even at an early mediation, if the clients are highly motivated to negotiate.
Biography
Michael Carbone is a full time neutral whose practice focuses primarily on construction claims and defects, real estate, business disputes and complex litigation. He has mediated and arbitrated for approximately ten years. He has served as a court-appointed referee in real estate and business matters.
He is a past president of The Mediation Society, a member of the State Bar Standing Committee on ADR, the ADR Committee of the State Bar Business Law Section, and the Board of Directors of the California Dispute Resolution Council.
He practiced law for more than thirty-five years. His practice emphasized commercial real estate and general business matters, including litigation of construction, real property, land use, and business cases.
Email Author
Website: www.mygoodoffices.com
Additional articles by Michael P. Carbone
Comments
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| Mark Moroknek,
Long Island,Syosset NY |
moroknek@msn.com
08/18/05 |
| With only two months to go before trial... |
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Nassau County and most other Counties around the Greater New York area have adopted a mandatory mediation program for most civil cases. As the Individual Assignment System came into its own, court rules began to change and time periods became more significant.
Judges were required to keep their cases to a standards and goals time limit. What this essentially means, to those of you who aren't from NY, once an index number is purchased, within 120 days the complaint must be served.
The preliminary discovery conference must then take place within a specific time, and at that conference, more dates are set. The Compliance conference is next, and next you must file your note of issue.
The time periods vary based on whether the case is classified as standard or complex, but after the note of issue is filed, and before the pre-trial conference, is the mediation.
Mediating cases in court with attorneys is different from mediating directly with the parties. However, the court requires the mediator
to make sure that there are no unexplained "no pay" positions; that the liability and damages are discussed. There is little room for squirming
because within two months from mediation you will be selecting a jury.
It pays to take advantage of the mediator's presence if the case is encountering difficulty in negotiations.
I have found that one of the most common sticking points where the attorneys have already been negotiating, is that they have gotten too involved in the "game" of not giving away how much money is on the case until they have a committment to settle for a figure certain. But the alternative viewpoint, is not wanting to let on how low one is willing to go, until the money is on the table.
When I see two or three attorneys dancing around this way, I speak to them separately, in confidence, find out what each attorney thinks,
and tell them what I think. Usually the case settles. I may spend 45 minutes one one case and ten minutes on the next but its time well spent.
I also think that its a great time to mediate. |
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| rich wanko,
nyc ny |
preetigirl4@aol.com
09/09/03 |
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this was very good info
i am going to mediation on 09/17/03
and had no info about it
thank you |
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| Steve Sovern,
Cedar Rapids IA |
Sovern@mediate.com
08/08/03 |
| Mediation: more than settlement |
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If mediation is defined as a settlement conference then one could have little disagreement with the article. However, mediation can be and is so much more. It is about communication, understanding and perspective taking.
Especially when children are involved, mediation needs to begin as soon as possible with very few exceptions. The partie best chance happens before the litigation process elevates acrimony and entrenches disputes. Waiting to mediate until after inflaming interrogatories or intrusive depositions are launched, requires back-breaking remedial work for the parties and the mediator in order to return to real listening and understanding.
In truth the less mediation is about settlement and the more it is about following the parties in the direction of their real concerns, hopes and needs, the more a true and lasting settlement is likely to ocurr. |
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