When to Mediate

There are many times during the life of a dispute when mediation may be effective. And even if a case does not settle at mediation, the parties usually learn new information or gain a perspective that will lead to a settlement in the near future.

To make a deal:
Parties may desire to make a deal but find they need the assistance of a third party neutral. The mediator can help design a process and guide the parties to a mutually beneficial solution.

Pre-litigation:
Lawyers and parties may choose to mediate before the commencement of litigation. Early mediation provides an opportunity for resolution when costs are relatively low and before the parties are further polarized by litigation.

After some discovery:
Remember the 80/20 theory-- we know 80% of the evidence after conducting 20% of the discovery. The case may be ripe for settlement when the parties know the basic evidence in the case--not everything, but enough to make a reasonable assessment of the risks, opportunities and costs of going to trial.

Before or after a motion for summary judgment:
A motion for summary judgment is expensive and has the potential to eliminate claims and defenses. Parties sometimes attempt to resolve their dispute before facing the cost, uncertainty and consequence of a motion for summary judgment or after the motion has been decided and the parties are clear which claims and defenses remain.

Before going to trial:
Facing a trial date enhances the awareness that the outcome of a trial is uncertain and that there will be winners and losers. Courts encourage or require the parties to mediate before going to trial.

Anytime might be the right time:
There may be many other opportunities for settlement, such as after trial and before an appeal or after an appeal and a remand to the trial court.