When is the right time to mediate? This is both a philosophical as well as a practical question. The answer ultimately depends on what you are trying to accomplish at mediation.
When to Mediate
There are generally three times during the course of a case in which to mediate. First up would be early mediation at the start of a case before much time and expense have been invested in the case. Next, you have mediation in the middle of the case before dispositive motions are heard that could turn the tide of the case. Finally, there is the end of the case mediation just before final trial preparations.
Early Mediation
The reason to mediate a case early is to save time, legal fees, and expenses for a matter in which the outcome may be fairly certain. In this instance, the germane facts of the case are generally not disputed and liability seems clear.
Naturally, anything can happen at trial and there is of course the possibility that new issues could arise or be discovered if the case progresses. However, the real concern at this point generally is the measure of damages, costs, and legal fees.
Early mediation is intended to save costs and legal fees. Proceeding with full-blown litigation at this point will only increase costs, legal fees, and acrimony. Such counter-productive measures will diminish the ability to resolve a case later down the road. That is precisely why an early mediation at this time can be effective for these types of cases.
On the other hand, if the case has many disputed facts and liability is strongly contested, an early mediation generally will not be effective. The effectiveness of early mediation declines when the parties need to develop their case and evaluate the potential outcomes as it relates to motions to dismiss, motions for summary judgment, and ultimately trial.
If a party cannot justify to either pay more or accept less than what they want, there is no reason for them to do so at early mediation. So in the end, an early mediation will generally only work if the parties have all the information they need to assess liability and damages. If you intend to proceed with early mediation, you must ensure that you have given the other side everything that they will need to make an assessment of the case in order to resolve it at an early mediation.
Middle of the Case Mediation
The reason to mediate in the middle of a case is generally to leverage the unknown and the threat of an adverse consequence to secure a favorable settlement.
The middle of the case mediation is generally the most difficult case to mediate since the parties will rarely agree as to the likely outcome of any dispositive motion. If the parties did agree to the likely outcome of the dispositive motions, the mediation would only be a measure of damages, costs, and legal fees.
When the parties dispute the outcome of dispositive motions, the decisions being made at mediation are often being made on instinct, interpretations, best guesses, and projections. Think of this as poker, chicken, or who blinks first.
A party may take less or pay more out of fear of losing the dispositive motion. Both sides are operating in the realm of the unknown and the case will only resolve if their fears and damage evaluations converge. Those are a lot of moving parts and that is what makes these cases the most difficult to resolve at mediation.
If you intend to settle at mediation in the middle of a case, you must provide as much information as possible to the other side as to the certainty of your position and why you are most likely to succeed with your dispositive motion. That means backing up your position with facts, evidence, and expert opinions. Vagueness, ambiguity, telling but not showing, is not going to help. Removing uncertainty at this point is your friend if your intention is to settle.
More often than not, parties are not willing to tell and show. Without telling and showing, the other side may have no fear and thus no motivation to settle at mediation. That is why many cases in this position do not resolve at mediation and they move on to have their dispositive motions heard, for better or worse.
End of the Case Mediation
For purposes of resolution, the end of the case mediation is perhaps the most effective. The reason why the end of the case mediation is the most effective is that the parties now have the most information and data in order to make informed decisions.
The only remaining uncertainty for an end of the case mediation is what a jury will decide in terms of liability and damages, and perhaps some final evidentiary rulings. By now, the parties have been able to assess witnesses for credibility and likability, the weight of evidence, and the themes for trial.
At this point, both sides should have already calculated a best case, worst case, middle case scenario for trial. Armed with all of this information, the parties are now equipped to negotiate certainty at mediation in exchange for the uncertainty of trial. If insurance adjusters are involved in the case, this may be the only time that a settlement may be likely given the necessary risk analysis and reporting that is required for them.
The Takeaway
The right time to mediate your case depends not only on your case but also on your intentions for mediation. Assuming your intention is to resolve the case at mediation, you will need to eliminate as much uncertainty as possible for the case. That means, telling and showing, sharing information, and resolving pending legal issues that could ultimately impact the result of the case. Resolution is based on a party making an informed decision and you can only get that when they have as much information and certainty as possible.
Stay well,
Patrick Russell
Miami Florida Mediator
Meaningful Mediation is Ethical, Mindful, and Strategic
