Benefits of Early Mediation
Nov. 3, 2022
When is it too early to mediate your lawsuit, case, claim, or dispute? Is it too early to mediate before you file the lawsuit? Is it too early to mediate before the other side files an answer in the lawsuit? Is it too early to mediate before discovery? Is it too early to mediate before dispositive motions are filed, argued, and decided? How early is too early to mediate?
It is never too early to mediate.
Some people espouse the mistaken belief that being the first side to broach the idea of an early resolution is a sign of weakness. Contrary to popular belief, pursuing an early resolution is a sign of strength and a power move. If done correctly, seeking an early resolution aided by a competent mediator can show strength and confidence.
Seeking an early resolution can show you believe your perception of the case is the correct perception. Likewise, accepting a proposal of an early mediation will signal confidence in your position.
Mediating early in a matter has several benefits. First, mediating early in a dispute or case can save everyone a lot of time and money. How often does protracted discovery in a lawsuit change either party’s evaluation of the case? Discovery takes time and increases costs in matters. Unfortunately, parties rarely uncover evidence significant enough to sway one or both to change their assessments of the case or claim significantly.
There are exceptions to that rule. Occasionally, discovery can uncover the hidden gem that drastically changes the value of a case. Years ago, I handled such a matter. After many discovery battles, we obtained the plaintiff’s Facebook posts showing her partying in a tropical location despite claiming she was disabled and could no longer travel for work. There are a handful of other examples in the thousands of cases I handled, but those instances stand out in my memory because they are rare exceptions.
Second, early mediation can save parties some of the emotional angst associated with conflicts and disputes. Every dispute has emotional components. While one side may not be emotionally invested in the conflict, the other party is likely heavily invested in the dispute.
Back when I was Chief Litigation Officer for a medical device manufacturer, I had a mediation in a rural location in a southern state. We started the mediation with the traditional opening statements from both parties for the mediation. Unlike some clients, I always insisted on speaking directly to the plaintiffs suing the company and preferred to have the plaintiffs speak directly to me.
After the plaintiff presented his perspective, I spoke on behalf of the company. Right after I spoke, the plaintiff, with tears in his eyes, thanked me for listening and indicated that he felt it was the first time anyone from the company “who really listened” to him.
On another occasion, during a mediation, a plaintiff came to my private caucus room to give me a hug for just for showing I understood his plight during the joint session. For me, those were not emotional conflicts. But for the plaintiffs, those were extremely emotional disputes.
Early mediations can ease the emotional trauma associated with the lawsuit or claim by removing the uncertainty about the outcome. Lawsuits are fraught with uncertainty – nobody knows how a judge or jury might decide the case, so there might also be risks of an appeal. The anger, angst, or trauma associated with the events that led to the lawsuit in the first place may remain. But the uncertainty about the lawsuit can be alleviated sooner rather than later.
Third, early mediation can help the parties identify the strengths and weaknesses in their positions. If the matter does not resolve during the first mediation, both sides can benefit through the open exchange of information. Both parties can learn more about each other’s facts and perceptions through the discussions during the mediation. This exchange of information can help both parties develop their positions for trial or the next mediation.
Fourth, early mediation can help moderate expectations by getting an assessment or at least input from the independent third-party mediator. Mediators can be valuable sources of independent input about facts, arguments, and possibly even value of the case. By hearing both sides and through their years of experience, mediators can candidly assess the arguments and positions of the parties.
Fifth, early mediations let the parties find common ground. Through the discussions during the mediation, the parties can discover the facts, arguments, and positions on which they agree. Finding common ground can help the parties move closer together and lay the foundation for future discussions.
Sixth, early mediations allow the parties the chance to end their dispute in private – long before embarrassing details become public. Trials are public affairs. Depending on the nature of the dispute, journalists, bloggers, friends, neighbors, or anyone else might attend the trial. Testimony and exhibits presented at trial are part of the public record. But mediations happen in private. The information exchanged during mediation will be confidential if the parties want the information to remain private.
Mediating early in a dispute has many benefits. If you are a party in a dispute represented by a lawyer, you should speak with your lawyer about mediating early to take advantage of the benefits. If you are a lawyer representing a party in a case, you should talk to your client about the benefits of early mediation.