Most litigators have experienced that mediation is a virtual certainty in nearly all cases. The question is no longer if, but when. In evaluating options for resolving your client’s dispute, you may ask yourself “when is the right time to mediate this dispute?” Some mediators might tell you it is always a good time to mediate, reasoning that the cost of litigation only increases with the passage of time. The reality is that the best time to mediate depends upon a host of circumstances.
You must determine the context of the dispute in relation to your client’s overall business. Is a change in law anticipated that could affect your client’s position in the litigation? Is a large liquidity event on the horizon, or a large debt service payment coming due? Does your client have budgetary restrictions that make settlement more appropriate in one year or another? Deciding the right timing for mediation in your case requires you to understand and appreciate the external forces, as well as the case related forces, that can impact resolution.
Do the parties have adequate information to feel they can make informed decisions about the strengths and weaknesses of their positions? Negotiations are likely to be more fruitful if the parties have the information they need to make an informed decision. Consider a discussion between counsel prior to setting a mediation to determine what information should be exchanged prior to mediation and how long it will take each party to gather and transmit this information.
Do the parties fully understand how much the balance of the litigation will cost and the time it will take to reach a conclusion? Certainly a successful mediation cuts off the costs and additional time and energy to reach a resolution. Prior to mediation, consider providing your client with a budget of legal fees and expenses through the conclusion of litigation.
Are the parties emotionally and mentally prepared to settle the dispute? Litigation is much akin to an emotional rollercoaster for a client. These emotions can impede one’s ability to think rationally and make sound judgments. Consider how best to engage your client’s rational side and minimize triggers on emotional items.
There is no doubt that timing is key. Being cognizant of the larger picture helps you best prepare your client for what lies ahead.
