Choosing the Right Time to Mediate
From mandatory requirements to personal considerations, there is a strategic approach to choosing the best time to mediate your case.
In case you have not heard, there is a proposal circulating to make mediation “mandatory” before commencement of trials in Allegheny County. The purpose of this article is not to go into details about that proposal. The short version is that the proposal requires all cases to be mediated at least 45 days prior to the scheduled trial date. There are exceptions. And that is all I will say about that. You can find more information on the ACBA’s website or within various articles that have already been published. For those practicing in the Federal Court for the Western District of Pennsylvania, you know there is, and has been, a mandatory alternative dispute resolution (ADR) program for close to 20 years. It is an early ADR program with minimal opt-out provisions.
In either case (and in quite a few other jurisdictions), it is not always the parties’ choice about whether they want to voluntarily engage in ADR, and sometimes you don’t have a choice about the timing. In those cases, you want to make the most of it by doing what is necessary to get the case ready for mediation. In Allegheny County, considering the stage at which it is proposed that mediation will occur, it’s likely that most discovery has been completed. But if you need some further information, request that the other party or parties provide that information. Or broach the subject with the mediator to see if they can help get what you need to engage in settlement discussions more effectively. In Federal Court, at your initial conference with the mediator, bring up the subject and enlist the mediator in trying to get you some informal discovery responses. As the Mediator, we want to help and make sure the parties have the necessary information to have a fruitful dialog.
If the parties have agreed to mediate outside of some mandatory program, then it is likely that information has been exchanged or there is not much of a dispute on some of the issues in the case; liability or damages or some portion of those elements is obvious.
However, even in those cases there can be subtleties. Do you have a full understanding of what the other side is looking to accomplish through mediation? Just because someone mentioned mediation does not signify a meeting of the minds on the outlook for the case. You may want to probe the other parties to see what they have in mind. Not to suggest bad motives, but there can be reasons other than resolution which drive the request to mediate. It could be that a party wants to try and get a better handle on the strengths/weaknesses of your case or even their own. Perhaps discovery has left some questions unanswered or at least open to interpretation. Delaying tactics can also be a motivating factor.
I have mediated cases where one party refuses to make a move unless the other side can provide them with some substantive reason for doing so. I normally ask the recalcitrant party what information they think they need that has not already been provided. Depending on the procedural posture it is likely that someone is trying to get a better understanding of their opponent’s case, which is not always a bad thing. Other times one party is not quite ready but offers up mediation as a way to mollify the Court. This can be tougher to recognize in advance of a mediation.
So, when is the best time to mediate a case? Is it before suit is filed, once discovery is complete, prior to or after dispositive motions or anytime thereafter? As with most answers in the law, it all depends. There are advantages and disadvantages to whatever time the parties choose to mediate their dispute. The biggest advantage to “early mediation” is that the parties have not expended a significant amount of time, emotional energy or legal expense on the matter. The Western District has chosen an early timeframe with some of those very factors as the basis for early ADR. Twenty years into the Federal Court’s program the point has been made that it is very effective, in most cases, to use the initial stages of litigation as a means for the parties to take stock and discuss settlement.
The argument most commonly advanced in opposition to early mediation is that the parties do not have all the relevant facts to accurately assess their risk and potential exposure. It has been said that 85 to 90 percent of all facts can be ascertained by incurring only about 10 percent of the expected legal fees through trial. In my opinion, mediating a case after some initial exchange of information has been provided is usually the best time since the parties can better assess their potential risk and exposure, without becoming too heavily invested in the litigation. At that stage the parties have also seen some of what lies ahead if the litigation continues.
There are, however, disputes where a party needs a ruling from the court before it can mediate a case, such as a difficult civil rights case against a municipal body. Proving the benefits of mediation to a governing body may take a court ruling on certain matters. In those instances, a case probably should not be mediated until after all dispositive motions have been ruled upon.
This is not suggested to be an exhaustive resource on the subject of the best time to mediate but to give you food for thought on the various reasons why you might want to consider mediating at a particular moment in time.
As published in the April 8, 2022 Allegheny County Bar Association's Lawyers Journal, Volume 24, Number 7 Edition.