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Mediation Timing Part 2 – Commercial, Corporate, Employment

Mediation Timing Part 2 - Commercial, Corporate, Employment By Gary Shaffer{4:00 minutes to read} In my last blog about timing and mediation, I suggested that in divorce matters, there is a sweet spot of around 90-100 minutes for any single session. You can read that blog here: Part 1. This framework is largely irrelevant to other types of cases, such as:

  • Commercial;
  • Corporate;
  • Employment;
  • Personal injury.

In non-divorce matters, the parties and especially the attorneys expect to spend a significant amount of time during any one mediation session. There is more shuttle diplomacy, especially early on.


There are two “timing” issues in non-divorce mediations:

  • What is needed before mediation can effectively begin
  • How much time is needed to complete the mediation

When to begin

While most attorneys feel mediation is not appropriate until a fair amount of discovery has been completed – document exchanges, depositions, etc. – my experience is that mediation can effectively begin before all discovery is completed, and often before any discovery has taken place.

Pre-mediation discussions can be extremely useful, not only in addressing the mechanics of the mediation – when, where, who will attend, etc. – but in teasing out what discovery is really needed. Typically these discussions, and those that happen later, drastically reduce the amount of discovery that parties believe is required before addressing possible resolutions.

Several mandatory/automatic mediation programs in the federal courts have shown that many cases sent directly to mediation upon filing have a high likelihood of being resolved through the mediation process. In such programs, discovery doesn’t precede mediation – it’s part of the process.

So when should a mediation start in non-divorce litigation matters? As soon as possible.

The parties will more quickly work through any needed discovery if the mediation process has begun. Fertile discussions often begin shortly thereafter or even while discovery has yet to begin. If the need for certain documents or depositions become apparent during the mediation, a relatively short adjournment is often all that is necessary. When the parties meet again there are usually few undisputed facts, which makes a resolution much more likely.

Quick scheduling works and can save months or years, and many thousands of dollars. It also allows parties to move on from being in the litigation business.

How long should it take?

Attorneys handling contract, corporate, real estate, or employment matters know that individual mediation sessions can run long – an entire day or longer. But many of these matters will be resolved in a single day. Often as 3-4 p.m. approaches, the parties:

  • Are a bit tired;
  • Are now invested in the process; and
  • Have had the chance to bat around ideas with their counsel, the mediator, and often the other side.

Solutions that seemed impossible not only months earlier, but even hours earlier, begin to emerge. When it’s 4:30, there is often a shift to working out details.

Of course not all cases are resolved in a day. Maybe a bit more discovery is needed, or the parties need time to sleep on things, or someone else in a corporate hierarchy must be consulted.

So, what’s the right amount of time for a mediation? It depends. But starting the mediation process early will create the chance for an early and cost-effective resolution.

Gary ShafferGary 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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