Mediator Bytes

Mediator Bytes

This week: Deciding when to mediate

As a mediator, I have never been asked what I thought the best time to mediate would be. I have, however, had the occasional discussion about postponement of a mediation because of some aspect of the dispute that was thought to be insufficiently certain to make settlement dialogue worthwhile.

So - when is the best time to mediate? Do you have a default view that you generally apply? Have you ever spent time considering how well (or otherwise) the default view operates or critically examined the reasons for the default view?

My general impression is that many litigation lawyers have a default view - and that is, that the best time to mediate is after pleadings have closed and the evidence has been completed (with any necessary discovery, documentary production and interrogatories also having occurred). This view seems to be driven by the thought that only at this point can the parties be sufficiently apprised of the litigation risks that ‘sensible’ settlement discussion can occur.

Here are some suggestions for making better decisions about when to mediate:-

Abandon any default rule: Each dispute, and every disputant, gives rise to individual considerations. Avoid assuming sameness and instead think about what best suits the particular dispute.

Ask what is necessary before settlement discussions can occur with a reasonable prospect of success: You will have you own views (as an advisor), but the real question is one that only your client can answer. In providing that answer, they may well need your assistance in understanding the potentially relevant considerations but it cannot be over emphasised that it is the client’s decision that matters. In particular, the client needs to decide how they want to negotiate and what factors are likely to be material to them (and to the other disputants) in so negotiating.

Consider and discuss what style of negotiation is likely to be most productive: A view that each party's case should be fully exposed in order for settlement to be reasonably achievable is often the outcome of a belief that positional bargaining is the negotiation style that should be adopted - so it is thought that the exposure assists criticism of the other party’s positions and advances the cause of the client. But if the client is open to interest based bargaining, earlier timing is often preferable - before the parties get carried away with working on their “positions”. Part of this discussion should be a discussion of what interest based bargaining can look like and also the potential ‘costs’ of delayed resolution, including legal costs.

Avoid the ‘certainty illusion’: The common belief seems to be that with more material comes greater support for the client’s cause - and indeed that is what clients and their advisors commonly experience ; the confirmation bias is hard to avoid. But that bias is usually experienced on all sides. So, the delay in mediating will often have allowed the parties positions to solidify - rather than achieving the narrowing the issues planned for. The same uncertainty in reality (but often unappreciated by the parties because of confirmation bias) often continues to exist. It can be easier to settle if the parties entertain doubts - especially if interest based bargaining is the focus.

Engage with the other disputants: When to mediate involves not only an assessment of what is good timing for your client, but also what is good timing for other parties. If interest based bargaining is thought a useful way forward, check in with the other parties to see if they are open to this and what might influence their timing for any mediation