Resolution Strategies | A Monthly E-Newsletter


“The right answer at the wrong time is the wrong answer.”

I don’t know who was first to say it, but the above maxim has become the mediator’s mantra. When it comes to almost every aspect of the mediation process, timing is everything – and that begins with determining the best time to engage in mediation.

Logically speaking, the sooner the parties submit a dispute to mediation, the better for everyone. Once positions have hardened as a result of the passage of time and/or the cost of litigation, fashioning a compromise that will be acceptable to all concerned may become more difficult. Indeed, some have argued — persuasively — that “pre-litigation” mediation should be mandatory.

However, mediating too soon can also make it more difficult to resolve a dispute in some cases. When one of the parties is not yet “ready,” mediating can sometimes do more harm than good.  


You’ve purchased two tickets to see the Lakers game, at a cost of $550. Just before you head out, it begins to pour. Knowing Los Angeles traffic as you do, you realize it could easily take two hours or more to get downtown, which means you are likely to miss the first half and might not arrive until the final 15-20 minutes of the game.

Alternatively. you can stay home and watch the whole game from the comfort of your family room, on your 60 inch flat screen TV. If you hadn’t already purchased the tickets, you’d opt to stay home. But you spent $550 on the tickets, so you hit the road.

Rational? Hardly. The money has been spent whether you go to the game or not, so why should your decision be different just because you already purchased the tickets? The answer lies in the fact that your hard-earned money is gone, but not forgotten. You believe you will feel better having spent the $550 on 15 minutes than you will having spent it on nothing.  


Last week, it happened again. In response to an offer deemed insulting, counsel for plaintiff said:

“I want to send them a message . . . “

Far too often, one side or the other instructs me to transmit a demand or offer which is intended to “send a message” to the other side. Before I will agree to do so, I always ask how the requesting party anticipates the other side will respond and whether such a tactic will promote resolution. Usually, the requesting party concedes “the message” is not likely to be well received and reluctantly admits that sending it might undermine whatever progress had already been made.  

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