“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.
Recently, I have been asked to mediate a number of matters before the parties were really ready. In some cases, the mediation had been placed on calendar solely to comply with a “court order.” In others, liability was admitted and the only issue to be determined was the amount of damages. In still others, pre-mediation demands had never been communicated or, worse yet, the opening demand at mediation was higher than the pre-mediation demand.
Each time, one of the parties left mediation feeling more frustrated than when they had arrived.
Generally speaking, it is difficult to engage in a meaningful mediation in a personal injury matter unless plaintiff’s deposition has already been completed or, if the matter is not yet in litigation, plaintiff has voluntary agreed to submit to a Statement Under Oath. Similarly, insurance carriers are seldom in a position to properly “value” a claim without having had a meaningful opportunity to review and consider plaintiff’s entire medical history and records.
Before committing to mediation — pre-litigation or otherwise — confirm that the other side has all of the information it needs to fully evaluate the claim. Exchange opening demands and offers in advance, in order to establish “the playing field.” Share expert reports whenever possible. Consider offering to permit the deposition of your expert or experts well in advance of mediation, whether or not they have been formally designated.
If a court “orders” the parties to complete mediation by a date certain, and you don’t believe it is in your client’s interest to do so, explain your reasoning to the court. If the court is not persuaded, ask your mediator to contact the court on your behalf.
I believe wholeheartedly that mediation is the right answer, but I also know first-hand that mediating at the wrong time can be the wrong answer. In a world where timing is everything, unless the other side has everything it needs, it may be best to consider another time.
As always, I would be pleased 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 wishes for a Happy, Healthy, Prosperous and Peaceful 2019!
Floyd J. Siegal