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It’s Never Too Early to . . .

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{4 minutes to read}  It’s never too early to mediate. I have written before on automatic mediation, meaning court-annexed mediation programs where the first step in the litigation process is to send the case out to mediation. Lawyers and judges who do not have experience with such programs often react negatively to the idea of cases going to mediation so early in the process. Those reactions are often based on the assumption that cases are only ready for mediation after all discovery has been completed; documents exchanged; depositions held; medical exams held when needed; etc. This assumption is wrong.

The reason underlying these views is simple: It’s what most lawyers and judges are used to. It’s what they know. At the risk of paraphrasing Donald Rumsfeld, they don’t know what they don’t know. A case is brought, there is discovery, and a year or two or three (or more) years later the case is ready for trial, and the parties talk settlement. That’s the standard process. 

I have heard judges say that they know when a case is ready to settle and an automatic program limits the ability of judges to exercise their settlement skills at the proper time. Many judges are indeed good at settling cases. However, as a practical matter, most judges don’t spend much time on settling cases until they approach the trial stage, when all that discovery is done. Then the judge rolls up his or her sleeves and says, “Let’s see if we can work this out.” 

Of course many of those cases settle, and since that’s when judges spend their time on settlement, they think that’s when cases are ready for settlement. 

But: What happens when cases are sent to mediation from the get-go, before several years of discovery with all the time and expense that entails? What happens is the process gets sped up. The mediator talks to the parties about what discovery they need, before a mediation can be held. Usually what’s needed turns out to be somewhat narrow and focused and doesn’t take one to four years. Instead, it can take weeks, or perhaps months.

Plus, the mediation itself focuses the parties’ attention on resolving the case. Have people walk into a room, close the door behind them, and voila, they start talking turkey. Maybe it takes a day or two, or a week or two, or a month or two, or even longer. But almost always, cases that go to mediation get resolved far more quickly than if they plod along the prescribed litigation route. Better they start off with a prescribed mediation route. 

The success of this approach is independent of subject matter. It works in commercial cases, personal Injury cases, divorce matters, employment, securities, etc. Does it always work to quickly resolve cases? No, and those cases that don’t settle can go to trial. They will most likely proceed at a faster pace, with much discovery having been completed and the parties having spoken directly about a resolution. Limited opt-out provisions can also be part of any rule. But we should not let the perfect be the enemy of the good. 

Where have you seen this work? Or not? Any advice to those involved in early mediations?

Gary Shaffer Gary Shaffer
Shaffer Mediation

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An honors graduate of Harvard University and the Cardozo Law School of Yeshiva University, where he also served on the Law Review, Gary brings more than 30 years of litigation and negotiation experience to his practice as a mediator. He has successfully negotiated and mediated resolutions in family matters, employment cases, commercial disputes, personal injury cases, and major civil rights matters.

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