WHEN IS THE RIGHT TIME TO MEDIATE?
By Ed Sikorski
As is the case in answering any legal question, the answer is usually preceded by the observation, “that depends.”
The following are some of the more important considerations in answering the question posed.
1. What is the nature of the dispute?
In family and tort disputes there may be a need for some time to pass to deal with resolution and acceptance of the emotional aspects of the matter. Recent emotional pain
from the event(s) may still be so raw that one or more of the parties are emotionally unprepared to settle or have unreasonable expectations and/or demands.
These considerations argue for the mediation scheduling to be later in the time spectrum of the case.
The decision basically comes down to identifying WHEN the parties are motivated to resolve the case and get on with their lives.
In commercial litigation, matters the parties are usually less invested in the case after a shorter period of time before emotions take control away from the pursuit of a sensible
business solution. Despite the emotional barriers involved in any dispute, the fact is that at some point in time the parties generally had some common ground or had some
agreement to do something. Mediating commercial cases involves leading the parties back to some common ground.
2. Are all necessary parties involved to conclude a settlement?
If resolution requires something beyond the control of the parties, participation by a party in control of that issue may be a precondition to settlement.
3. Is there sufficient available information to make an intelligent decision?
Exhaustive complete in every detail information is probably not needed to make a case resolution decision. The economy of mediation would be defeated if all discovery
proceedings were to be completed prior to the conduct of the mediation.
Information exchange may proceed on the basis of reliable reports, summaries, records and statements. Outstanding issues may be resolved through satisfactory verification.
In short, the timing of the conduct of mediation depends on the identification of the earliest appropriate time to conduct the proceeding – when the party’s interests and critical facts are known, and a forecast can reasonably be made of the likely outcome if the matter proceeded to trial.