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JEAN LAWLER:
Hello, it's so nice to be here with you today. I’m Jean Lawler and welcome to my podcast, ROADS TO Resolution ~Closure and ~Certainty. As a mediator, I am honored to be invited into other people’s lives for a few hours. Lives–like all of our lives–that are shaped by the many roads that have brought us to our “todays”, roads leading to the unexpected, and to roads holding the promises of “tomorrow”.
And so what roads are we going to talk about today? I thought that a good topic would be: Timing Is Everything–When To Mediate.
The timing of a mediation can be what breaks it or makes it, so to speak. Let me, though, first backtrack into settlement. When is the right time to mediate depends a lot on what has been done earlier. And I want to say that I am a huge fan of people taking charge and control of their own cases and not relying on mediation–picking up the phone, calling the other party, and trying to see if they can settle a case sooner than later. Early evaluation, early resolution.
So when a case comes into a defense counsel’s office, the sooner that they can evaluate that, the better. Then ideally that defense lawyer picks up the phone and calls the plaintiff lawyer and they can figure out if they might be able to resolve the case without need for mediation, or what they might need to then go to mediation, etcetera, that type of thing. On the plaintiff side of it, clearly the plaintiff lawyers have already done their evaluation as part of even taking the case–their case intake process. And so they know more about the case by the time the defense counsel gets it than the defense counsel would know. The defense counsel may need more time to get up to speed. But, in whichever side of the bar, the table, the counsel table you are sitting on–plaintiff or defense–early evaluation, early resolution is a wonderful thing.
There are cases that will need to go the distance. They go through trial and that’s fine too. Early evaluation is still very critical there, though, and then early resolution. So what is it that would trigger the decision to go to mediation and what might be a right time to mediate a case, if you can’t settle it just by picking up the phone and talking?
Well first of all, there is no one right time. Only you as the lawyers, the parties, the claims representatives, the general counsel, the people involved in the day-to-day aspects of the case can decide when it's the right time. But it is most certainly the wrong time to go to mediation if you have not evaluated and figured out your case.
So let’s assume that all that’s been done and you’re going through discovery. Well, rather than go through lots of discovery–requests for admission, interrogatories, maybe 20 depositions–really look at your case and figure out: What do I really need to be able to evaluate this case to get it into a posture to be able to be settled? And there is no such thing as too early or too late, as such. Just maybe the amounts differ, because before you rack up a lot of attorney fees, it can be helpful to try to settle the case. Lots of cases can be settled sooner than later that way.
You need to clarify your facts obviously, and then be cognizant of the law and if there are legal issues. Well, is this a case that's set for summary judgment that you do that and then take it on up? Maybe it is an appellate issue and an appellate decision that’s needed. But if it's a typical case where that’s not the situation and that it's fact driven, relationship driven, I think early mediation is great. It may not settle that day, but give it a shot. Give it a try.
Earlier in the case, maybe the parties are not so entrenched in positions. They will not have gone through a deposition and become offended, maybe. There are just so many reasons, but by mediating as early as possible, then you might also get the direction that the case needs to take, if it doesn’t settle. And it might settle early–being the equivalent of picking up the phone and making the phone call. So there’s benefits across the board. I would urge you not to use mediation as a crutch. Again, go back and see if you can resolve it.
Remember that the mediation–if you go through the pre-mediation process of exchanging mediation briefs, having the mediator’s pre-mediation call, all of these things really help the case along. If there’s one or two depositions that you need, then take them. Talk early with counsel about what you can do to get into a settlement mode. So maybe you’ve got a deposition coming up, or a summary judgment motion coming up, and that’s the time to go to mediation, before somebody has to be deposed that definitely doesn’t want to be deposed, or as the lawyer, you really don’t want them to be deposed, then maybe that’s the time to mediate.
Summary judgment pending…Maybe the time to mediate is after both parties have briefed the case, but before the oral argument because then their positions are out there. Both sides can be fully aware of the positions, and quite frankly, those mediation briefs can be the opening brief and the response brief for the summary judgment motions.
So in any event, I just think that when to mediate–aside from the obvious–that it's up to the parties involved. Don’t let a case drag on. The timing is: carpe diem, “seize the day”. There's no time like the present. All these types of phrases...Get your case in a position to be able to be settled, and then get the mediation scheduled, and go for it, and I think that you’ll find that you have a higher rate of success at mediation than if you let something drag on for years and years, and then try and settle it on the courthouse steps. It’ll have to settle for more money, probably. I mean unless you’ve clearly won the case, and it's going to be a dismissal with prejudice, or one side or the other is clearly going to be the winner and the case goes away for that reason. But if there’s going to be an exchange of money–as we all know having been in this field of litigation for any amount of years–cases settle for more the closer they get to trial. And so get your mediation scheduled, and do it sooner than later, and go ahead and pick up the phone and try to get it settled without the need for mediation.
Thanks so much for joining me today. I appreciate your being here. Please feel free to follow me on LinkedIn, please subscribe to my YouTube channel. Follow me with my podcast. Give me a call if you’d like to talk. Thanks so much. Bye bye.
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