“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 mediation, timing is everything – and that starts with deciding when will be the best time to engage in mediation.
Logically speaking, the sooner a dispute is submitted to mediation the better for everyone. Once positions have hardened as a result of the passage of time and / or the cost of litigation, it can become much more difficult to fashion a compromise acceptable to all concerned. Indeed, some argue persuasively that parties should be required to mediate before filing suit.
However, mediating too soon can sometimes complicate the dispute resolution process. When parties are not ready to resolve their disputes, they may say and do things which make the road to resolution that much more difficult to navigate. In fact, a strong argument can be made that courts too often refer matters to mediation before the parties are ready – i.e., before they have had sufficient time to sort out the facts by engaging in written discovery and taking essential depositions. Frequently, parties and counsel show up at a mediator’s office for no reason other than to “comply with the court’s order.”
Generally, counsel are best able to determine when mediation is likely to be most productive. If the parties are willing to exchange documents and other information before a lawsuit is filed, it is often possible to engage in a meaningful mediation before resorting to court.
On the other hand, if litigation is already pending and there is a concern that it might be premature to engage in a meaningful mediation – or that mediating too soon could do more harm than good – it is best to explain to the court that waiting a while longer to submit the dispute to mediation might be a better choice. If the court is not persuaded, consider asking the mediator to contact the court on your behalf.
Remember, mediation is a consensual and voluntary process – a process that is far more likely to be effective when everyone agrees the timing is right.
As always, it would be my pleasure to assist you and your clients in the dispute resolution process. Please don’t hesitate to contact me if I can be of service.
Best regards,
Floyd J. Siegal
fjs@fjsmediation.com