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The Weaker Your Position, The Earlier You Should Mediate

December 13, 2010

Conventional wisdom has always suggested the goal of relative total discovery, thorough evaluation and full preparation of a position before you seek to mediate with the opposition. 

I contend that the best lawyers will be just as innovative with timing their mediation as with the use of any other tool of their trade.  That includes carefully choosing WHEN to mediate.

In any dispute, one side will always have a weaker position compared to the other.  It may be a complaining party.  It may be a defending party.   And obviously only trial of the dispute will prove which one. 

But, good lawyers should have an informed impression of the relative strengths of a dispute immediately after they have a fair opportunity of reviewing sufficient and reliable facts and law of the dispute.   And as soon as they are able to advise their client of their chances of success, they should also be able to determine when the timing of mediation will be optimal.

And, as soon as good lawyers determine their client has the weaker position, I contend,  the sooner they should aggressively seek mediation.

In our present system, with the upward spiraling costs of litigation, over and above that of the fees of the participating attorneys, the earlier a resolution can be found to any dispute, the better the net result to both clients.  Clients will always judge success by the net result.  That is, the result, taking into consideration it’s emotional and financial cost to them.

Accordingly, it should be easily understandable that the more total money expended by the opposition, the less money or interest available from the opposition for resolution.  And the same is true for the passage of time.

Another factor is that full discovery almost always favors the stronger position.  And the passage of time almost always favors full discovery.   The better lawyer will  know the foreseeable result of the dispute earlier and the respective strengths of the sides.  And they will know that if he/she has the weaker position, that moving quickly to resolution will maximize their resolution potential. 

Time and money and the “full disclosure” theory of our present state and federal legal systems, will eventually allow the weaker attorney to catch up with the stronger position.  But at what final cost to the weaker side?

Client expectations also play an important role in early mediation.  The longer a dispute continues, the greater any client’s expectations.    After all, would their attorney keep pressing if success wasn’t becoming more obvious?  It is the rare attorney who does not unconsciously raise the expectations of their client as time passes.   Perhaps if nothing more than to justify the passage of time and the expense.  And, the more money paid, the higher the client’s expectation for net success.

Earlier mediations also allow relatively inexpensive discovery and ultimately an array of weapons should the mediation not result in resolution.  Actually seeing your opposition and hearing the theories of their counsel is invaluable, particularly early in the litigation.  Failed negotiation only narrows the dispute issues and thereby increases your ability to advise your client of options they may have in the future, including for shifting the cost of litigation.

Time is also the general enemy of all litigation.  It is seemingly particularly harsh to complaining parties.  Witnesses and evidence are lost.  Damages become dim or garbled or sometimes even moot.  And the zeal with which the litigation was undertaken quickly dims with the burden of being a party to the combat process.

And,  “the squeaky wheel gets the grease”.  In the present, many opponents will simply not negotiate without mediation.  If they will not negotiate, they will not bother to evaluate.  And, if they will not evaluate, you and your client are simply on a predictable treadmill of the costly passage of time and the priority of others.

In summary, the best lawyers should know that their early evaluation revealing their client’s weaker position in any dispute must move them to push strongly for early mediation.

And, should early mediation fail, the best lawyers will repeatedly be seeking additional mediations until resolution is finally obtained.

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