How soon can you mediate a dispute

By John Allison 

Mediation can take place as soon as all the parties are ready to explore the possibility of settling their dispute. Because mediation is a facilitated negotiation, it can occur even before a lawsuit is filed. 

Many clients who are involved in a dispute are primarily interested in resolving the dispute and getting on with their business or their personal lives.  They do not enjoy the uncertainty, gamesmanship, expense and emotional toll typically associated with the litigation process. Most business clients find litigation to be a time-consuming distraction from the mission of their business. 

Pretrial discovery is not essential to a successful mediation because the goal is not to persuade the mediator that your client should prevail on the merits. Unlike a judicial settlement conference, mediation gives the parties the opportunity to resolve their dispute on terms wholly unrelated to the merits of their respective legal positions. To illustrate this point, a manufacturer was the defendant in a product liability case pending in a problematic jurisdiction. 

Though the plaintiff was genuinely ill, the issue of medical causation was hotly contested. The plaintiff, in her early sixties, was starting to develop arthritis for reasons that had nothing to do with the defendant’s product. The defendant was able to settle the case by giving the plaintiff enough money to buy a modest one-story house and cover her past medical bills and attorneys’ fees. The plaintiff was happy, knowing she would not have to walk up and down stairs in her home as she continued to age. The defendant saved quite a bit of money and was glad to avoid a jury trial in the particular jurisdiction.

Sometimes, one or more of the parties want to have a better understanding about the strengths and weaknesses of their legal position before considering settlement. In that situation, a mediator can help the parties agree on an informal exchange of information, or on an initial pretrial discovery plan.  It is helpful to remember that a mediator can conduct several mediation sessions. If a dispute is not resolved in the first session, it may very well be resolved in a later session.

By taking a creative approach to mediation you will be able to help many of your clients resolve their disputes early, before they become heavily invested in the litigation process. They will be grateful.
