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Mediation Strategy: Timing The Scheduling Of Your Mediation

January 28, 2012

One of the most important planning tasks for any mediation is timing when your mediation should take place.  In this one advance planning decision, you afford yourself your very best opportunity for greater mediation success.

The mis-timing of a mediation may well be the single most repetitive cause of failed mediation.  (If it is not, it is only just slightly second to running out of time regardless of when mediation is held!)

And, by obtaining this same commitment from your opposition, early, you also increase your odds for your choice of the perfect mediator for your dispute and the attendance of all of the necessary parties to reach resolution.  Two more components to success.  And, please notice, that part of this planning strategy is to work actively with your opposition to optimize your mutual timing selection.

Of course, your preliminary decision to your timing of any mediation is:  What is the purpose of this mediation?

For the purposes of this discussion, however, I am referring to the timing of your mediation to maximize full resolution potential.

(Although the presumed central purpose of any mediation is a full resolution of the issues of the dispute, many excellent lawyers will also use mediation as a litigation tool.  Unilateral scheduling for example, can be useful in both movement of a case toward a conclusion by whatever means most expeditious.  And,  it is a wonderful and efficient discovery tool in the hands of competent counsel.)

If you follow my Educational Blog, you know some of my earlier general thoughts about the timing of mediation.  Among other articles that lean toward recommending an “early” date you might want to review, “The Weaker Your Case, The Earlier You Should Mediate”, December 13, 2010.  And, don’t ignore the realities of policy limits of insurance.  The less your applicable policy, the earlier you must mediate.

However, you should also be aware of the downside of any mediation that might be considered “early” by reviewing, Mediation Tip: Early Mediations Require Claimant’s Deep Discounting“,   August 29, 2011.

Generally speaking, however, as a baseline of discussion, scheduling your “resolution” mediation literally only days prior to actually beginning your trial, is considered the most optimal resolution time for mediation.  The parties, and their counsel, then all know quite dramatically, that should mediation fail, trial is a certainty.  And, it is the last opportunity for self-direction.

For cases, therefore, that only the imminence of a decision by a third-party can cause the full and considered discussion of the benefits of the alternative of settlement, the closer to the trial, the better!

However, at this late date the only factor driving consideration of voluntary resolution is, literally, only the uncertainty of the trial outcome.  By that time, the “business-decision” factor, litigation costs, attorneys fees, loss of the alternative use of time, the emotional investment of the parties, all have been consumed by the process and now are no longer available as a factor in resolution.  (Or, at least are thought to be, as few parties realize that a trial outcome is only the beginning of another longer post-trial and appeal process.)  At least as preparation for the first trial.  (Notice that trial stress and appeal stress and even another complete round of trial and appeal and the further costs, etc. remain, but in most clients minds are simply too distant to consider.)

And, at this late date, it is then too late for one of the best adversarial weapons for either side, the proposal for settlement (or, in some jurisdictions, an offer of judgment), with its costs/fees shifting potential.

And what if you got really, really close but simply ran out of time*?  Wouldn’t it make sense to leave time for that “one last chance”?

Another timing factor, then,  is also whether your dispute is one that will likely require only one formal mediation conference or more.

Commercial attorneys, for example, who also wisely use mediation as a primary discovery tool, accept that many of their matters will take many and often, lengthy, formal conferences to resolve.  And, any complex matter and matters with large amounts in dispute may and often do require multiple formal conferences, also.

Then, it is more the scheduling of your planned and predicted number of mediations, along with other factors I will illustrate further down, that may control timing of each or all.

And, tactical planning your hoped-for last mediation requires some very careful legal thought, as well.

For one thing, is your trial date really that firm?   And, what is the status of any dispositive motion, for you or against you, filed (or anticipated to be filed?)

For another tactical example, many attorneys prefer to schedule their “final” mediation at least sixty (60) days prior to the first scheduled trial period.  Such timing permits either or both sides to solidify their “best last offer” by immediately following any failed negotiations with a proposal for settlement at the amount last offered in mediation.

In fact, one of most mediator’s tools is to use this adversarial tool as an incentive to both parties to truly make their best offers at mediation.  There is nothing to be gained by deviating from the position after mediation.  If offered at mediation, the matter could well resolve.  If offered by proposal, there is a costly waiting period of 30 days!  (And, if the mediator can get both parties so close that exchanging proposal is suicidal, the case will, naturally, resolve!)

But, beware of getting caught in a negotiation trap where you have served a proposal for settlement and your mediation is scheduled prior to the expiration of the proposal.  In short, paraphrasing other similar conundrums, “there are a number of things that can happen, but most of them are bad” (and the subject of another future article?).

And, please, consider other important scheduling timing factors that can have a significant impact on your success.

December, particularly for personal injury matters, is the premier month to schedule your mediation for many non-trial related reasons.  Among the most common, end-of-the-year issues unrelated to any particular claim, and primarily corporate or even tax-related, are at work.  And, any competent Plaintiff’s attorney will be able to tell you of the stress they face from clients who are more interested at that time of year than any other.

Trial calendars are also useful to consider.   Yours and your oppositions.   Trial attorneys know they are likely never going to have a pleasant Christmas or be able to enjoy the fall leaves for one very important reason: trial calendars.  Most judges routinely schedule their heaviest schedules beginning, January 1 and September 1 and therefore, knowing this should give you a good idea of how your mediations might have to be planned to fit those considerations.

Weather plays a role as well.    No one likes to be uncomfortable in travel.  When is it uncomfortable to travel?   Summer!  Executives of party-defendants and insurance carriers are far less likely to want to attend a meditation scheduled in a period of uncomfortable travel.  Next time you wonder why the “Big Shot” you sought to attend your mediation is not present, just look at your calendar (or the thermometer) for a start.

On the other hand, weather and seasons can work for you, as well.  Many parties who normally would die rather than travel, will find coming to sunny Florida during yucky weather somewhere else as a treat.  And, sometimes you can even throw in the tie-in of your mediation with someone’s vacation.  Or, tie it to some other court-ordered matter that saves all by commingling into one trip.

In summary, just as in preparation for trial (or even easier since you rarely have any choice in your trial period), advance planning for the timing of your mediation will pay you distinct dividends if you will just make the effort to be as careful in planning the timing of your mediation as you might for the date of your trial.

It just takes thought and planning.  Maybe these thoughts and suggestions will be a start.

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