The_Three_Bears_-_Project_Gutenberg_etext_19993

The Time To Mediate That’s Just Right? Not Too Early, Not Too Late.

March 20, 2008

                  
                     [Image: The Three Bears, Project Gutenberg etext 19993]

          Thank you to Geoff Sharp, a commercial mediator and barrister from New Zealand who also blogs at mediator blah…blah… for making a point about the timing of a mediation in the course of a dispute.  I pass along his post and amplify it here for those who might not have seen it.  He cites to a recent case from the UK that focused on the award of costs in litigation where the losing party alleged that the prevailing party had failed to mediate and thus incurred unnecessary expenses.
          When is the best time to commence the mediation of a dispute?  As Geoff Sharp put it in paraphrasing “the wise old Judge”, the key is identifying “the happy medium: the point when the detail of the claim and the response [are] known to both sides, but before the costs that [have] been incurred in reaching that stage [are] so great that a settlement [is] no longer possible.”  In short, not too early, not too late.
          Although this point was made in the context of a litigated case, the same caution about waiting too long applies to any dispute that causes parties to consult lawyers and begin to evaluate their legal options.  In all such matters, as time spent, opportunity costs and out of pocket expenses build, the parties have less and less  to move around on the bargaining table.  The parties also tend to believe (not always correctly, but believe it nonetheless) that their risks become more known and less variable as the elements of the dispute become more familiar.  It also appears to be human nature for the parties and counsel to harden in their positions with the passage of time and the inevitable personalization of the dispute.
          Mediating too soon can be a waste of time.  If the parties don\’t fully understand their case, they will not be comfortable with the reality testing and back and forth of a facilitated negotiation.  Worse yet, they may adopt false but hardened positions on issues that preclude a settlement later on.  And once parties have assembled for an unsuccessful mediation, they often will simply conclude that “mediation won\’t work in this case.”
         Counsel should actively focus on this question of mediation timing, and make a purposeful decision about when to propose and accept mediation.  Leaving the decision to one\’s adversary, the court, or the occurrence of an impasse in direct negotiations misses an opportunity for effective mediation advocacy, and perhaps the best result for one\’s client.   Many mediators  (including this one) are happy to discuss mediation timing with both counsel to explore the issues raised here, and should be sought out for that purpose.