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Early Mediation: A Reminder of the Pros and Cons!

January 13, 2014

Normally I try to avoid repeating my suggestions about improving your mediation success.  After all, they are just suggestions.

Occasionally, however, some subject is so important and so pervasive that it bears repeating. The pros and CONS of early mediation seem to be one worth repeating.

Despite my earlier caveats (See,  Early Mediations Require Claimant’s Deep Discounting,  August 29, 2011; Timing the Scheduling of Your Mediation, January 28, 2012; But They Asked For This Mediation!“, January 7, 2013, etc.), too many mediating parties, particularly Plaintiff-parties, are still leaving early mediation clearly disappointed.   And, I am concerned that they are mistaking their disappointment in not resolving a matter as rather, disappointment “in the mediation process” (or worse, the mediator!).

I can accept the parties disappointment as simply misunderstanding the multiple uses of mediation, but I really question why any of their counsel would share any extreme disappointment.  (Or, why their counsel did not prepare them for the benefits to be gained from mediation, other than only resolution.)

Unless, they missed my earlier posts and/or missed the point that very likely the “other” party did NOT leave disappointed.  The “other party” ACHIEVED what they PLANNED to achieve.   And, thus, the other party found REAL VALUE in THEIR mediation.

As you know if you follow any of my periodic “reporting” postings, I generally believe that for the average “good” case, plaintiff or defense, that the optimum time to mediate the matter is approximately 40-60 days prior to a firm trial calendar setting.  The more precise timing of YOUR case, however,  is governed by a host of other considerations.

There are an abundance of valid reasons, differing as to the case and the party, as to why an “early” mediation is also very, very productive.  See, The Weaker Your Position, The Earlier You Should Mediate, December 13, 2010 or “Mediation Tip:  Litigators, Use Mediation to Move Your Case!March 23, 2012.   And, those very experienced in the art of mediation (i.e.,  Insurance Professionals), use this important discovery device with great success.

But, there are an equal number of reasons why NOT to agree to early mediation.

And, therefore, it is incumbent upon those who do not understand the value of early mediation to their opponent to at least inquire as to why their opponent is asking for it!

For example, many insurance professionals and defendant representatives know well the value of an early mediation to them.  Early resolution, of course, is always the stated object, and if possible, can be achieved.  But, as that is generally not likely for any number of reasons too space consuming to mention, why else is it a value to them?

Answer:  Because it gives them a very inexpensive method to add discovery to their always-ongoing risk analysis!

Being able to visualize a claimant, alone, is often cited as worthwhile for any mediation.  (If you don’t know WHY, you have even more to learn about trial practice.)

And, of course, watching a claimant’s actions and/or statement without “trial/deposition” preparation is invaluable.  Observing the preparation of the opposing attorney for mediation and his/her conduct of the mediation is also a hint of their future legal representation ability.

And, it is cheap discovery.   Most early mediations will quickly reveal the existence of key liability witnesses, unseen-before documents, the employment of expert witnesses and can deliver an up-to-date chain of injury treatment, medical expenses and liens.   This same information, although available by more expensive discovery, can take months and years to obtain by other means.

Participating in any mediation negotiation also allows real insight upon future negotiation potential both from the party and their counsel.  Cases that have not been demanded, end up with an early demand.  Cases that have not been negotiated at least end up with a more defined parameters for future negotiation.

And, “money on the table” can work wonders for the defense.

Are you starting to get the picture?  There is MUCH to be learned for those who want to learn.  And, it is very, very, inexpensive compared to obtaining the same or similar information with more formal discovery and non-mediation negotiation.  And, there are tactics that early mediation allow that cannot be undertaken as effectively without mediation, i.e., “real” proposals for settlement.

But, early mediation can be equally valuable to a claimant.

The hardest part of any claimant’s counsel for their claimant is speeding up the end-resolution of that clients claim versus the thousands of other claims competing for the attention (and payment) of your opponents.  Mediation is one quick way to force your opponent, at least for a short time (but an early time) to consider YOUR case.

There is also nothing that should focus a claimant’s counsel on his/her own case more than a chance to resolve.  Or, at worst, to move their claim ahead of others by “force-feeding” the opponent and the opponent’s counsel with information!  Cases that have some negotiation started are given more attention than those where the process has not yet begun.

And, while your client is being observed, you are observing your opponent party, their preparations and their interest and their negotiation techniques, etc.  And, yes, you get your own cheap discovery as well.

But, you also get to test some of your tactics you contemplate to enhance your clients claim.  Gauging your opponent’ response or reaction to theories, witnesses, expert witnesses and other legal ploys, i.e, motions for summary judgments, can return valuable information for future litigation pursuit.  Or, turn you immediately to a different course.

And, my favorite (for both sides), proposals for settlement are a post-early mediation “must”!

As a mediation consultant, I often assist counsel in timing their mediation, or in simply evaluating the merits of how and when to mediate.  However, the first question I always pose to any such inquiry, is:  “What is your goal in the mediation proposed?”  (Likely I know their opponent’s goals.)

If you cannot think of a benefit to your client to an early mediation requested by your opponent, then stop agreeing to them!  Or, better, try to judge why NOT mediating early is beneficial to your claim.   There are legitimate reasons to resist.  But, at least think about it.

However, if you agree to an early mediation, at least plan for those uses that make any mediation valuable.

Take the pledge in 2014 to really give thought to the timing of any mediation.  Don’t leave another mediation”disappointed”!

Dan, from Orlando, Florida.

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