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.
MICHAEL P. CARBONE is a senior mediator who has also served as an arbitrator and court-appointed referee. His dispute resolution practice has been built over a period of more than 25 years and covers a wide range of fields. His exceptional combination of transactional and litigation experience enables him to handle complex litigation and other challenging cases.
Michael resolves business and commercial cases, real estate disputes, employment claims, construction claims and defect cases, estate and trust matters, insurance issues, legal malpractice, corporate and partnership disputes, and personal injury cases. In his capacity as a court-appointed referee he has undertaken a wide variety of responsibilities, including sales and appraisals of real property, and the adjudication of trust accounting and administration matters.
He is a member of numerous dispute resolution panels, including the National Panel of Arbitrators of the American Arbitration Association. He is also listed on the mediation and discovery facilitation panels of several Superior Courts.
He is a founder and past president of The Mediation Society, and a member of many other professional organizations, including the Academy of Court-Appointed Masters, the Dispute Resolution Section of the American Bar Association, and the Association of Business Trial Lawyers.
Michael is a frequent author and speaker on alternative dispute resolution issues. He publishes a monthly newsletter entitled "Resolving It" which provides timely advice on strategies for successful mediation and discusses current issues, such as reforming the commercial arbitration process and mediating e-discovery.