Mediation Trigger Points
An important, but underrated, factor in mediation involves timing. I have mediated cases at many different times in the dispute process, and my experience, follows.
Before the Sword Falls
Pre-litigation mediation seemingly has become more common. My own experience is that the probability of settlement at this point is substantially less than 50%. This is because, in my view, the parties and their counsel have not: fully explained their claims and defenses, lived long enough with the dispute, spent enough time and money to foster resolution, and are not emotionally ready to resolve the matter. Nevertheless, some disputes can be settled before or without litigation, and it is worth a try.
Dip Your Toe in the Water
Some mediations occur after the pleadings are complete, but before any discovery has been conducted. My experience is that the settlement rate is not much better than pre-litigation mediation for the same reasons. Mediation at this point does have a slight advantage in that at least plaintiff’s legal theories and defendant’s defenses are known and can be explored in the mediation statements and at the mediation.
Let’s Save Money
A fair number of mediations occur after paper discovery has been completed but before any depositions have been taken. This is usually a good time for a mediation because many of the facts have been disclosed in the documents, and the cost of depositions, easily the most expensive discovery tool especially in complex cases, has yet to be incurred. The potential cost of proceeding through trial is probably at its highest point it will ever be in the dispute, and this fact can be useful in moving a dispute to resolution. There is usually a better than 50% chance of reaching settlement.
The Pressure is Mounting
Another frequent trigger point is after depositions are completed, but motions for summary judgment have not been filed. By this point, virtually all facts are known to counsel and the parties. The seemingly inevitable motion for summary judgment or partial motion for summary judgment is yet to be filed but has probably been threatened by one side or the other. If so, it can be used as a talking point by the mediator. In my experience, many cases are resolved at this juncture.
Uncertainty Can Help
Many mediations occur after summary judgment(s) have been filed, but no decision has been made by the judge. Most mediators agree that the uncertainty of a ruling is an advantage in mediation. While I understand this viewpoint, I do not totally agree with it. A motion for summary judgment that has been decided provides a clear signal from another neutral, i.e., the judge, as to her/his view of the dispute. This can be very valuable despite counsels’ confidence in their ability to persuade the jury. Typically, a mediation at this point occurs within 4-6 weeks of the trial date so, depending upon the complexity of the case, there could still be a lot of expense to be incurred, which usually helps the case get resolved. In the less complicated cases, however, the cost of preparing for and trying the case is not so significant. Accordingly, a mediation at this point can sometimes be “too late.”
Don’t Let the Show Begin
Mediations, after a ruling on summary judgment, within 2-3 weeks of trial, in my experience, do not occur frequently, but the settlement rate is surprisingly high. Eve of trial mediations tend to occur in less complicated cases as counsel, insurance representatives, and the parties become more concerned about the possible outcome.
This blog post is part of David Schaefer’s peer-reviewed article, “Some Thoughts About Mediation,” published in the Litigation Counsel of America’s Litigation Commentary & Review. For more information or assistance regarding alternative dispute resolution, please reach out to request a consultation, call us at 216-696-1422, or visit David’s bio for his contact information to reach out to him directly.
