MEDIATION TIP #3 – IS YOUR CASE REALLY READY FOR MEDIATION?
By Glenn Loewenthal
This week’s topic might have been more appropriate for my first tip, but I will from time to time address a topic that is fresh in my mind based upon recent experiences. Before you schedule your case mediation, ask yourself if your case is really ready for mediation. This might be a more important question than you think. Not all cases that I have mediated are ready for mediation. And if your case is not ready for mediation, there are consequences that could result.
First and foremost, your case may not settle, and that is the reason you came to mediation in the first place. The mediation turns out to be a waste of everyone’s time and money, and that’s not good for anyone. Not even us mediators. Sure, we might get paid but that is secondary to our goal of helping the parties reach a resolution.
Second, if your case does settle, it might settle for an amount that much less than it would have if the case was ready for mediation. While this is a boon for the defense, it is bad news for the plaintiff. If you are representing the plaintiff, you are doing your client a disservice by scheduling a case for mediation before it is ready. That begs the question, why is the case not ready for mediation? Most often, it is because the case is not fully developed. Attorneys and clients alike can be in a hurry to get to mediation. Don’t be! While there are instance where a case is ready for mediation early in litigation, and even sometimes pre-suit, those instances are the exception and not the norm.
The vast majority of cases that are ready for mediation are those that have at least completed the discovery process. The parties have exchange discovery, all documents have been produced and all depositions have been taken. Ideally, the case ready for mediation is the case that is ready for trial. However, if you have at least completed discovery, cases can be ready for mediation even if there are motions pending. If you are the plaintiff, you want the defense to have every piece of available information to be able to evaluate your case and its value. If you are the defense, you want to have complete information to be able to do a complete evaluation. If there are questions about liability, causation or damages that have not been fleshed out in discovery, documents and witnesses, the case is not ready.
The bottom line? Be patient! Don’t schedule mediation until the case is ready!