Timing the Mediation of Your Employment Law Dispute:
"Strike when the Iron is Hot"
"Timing is everything in business and in life!" Unknown
As an employment law litigator, and now also as a mediator during the past 36 years, I have participated in many many mediations. I have learned that the timing of the mediation is extremely critical for the process to result in a resolution. A mediation is as successful as the "then" willingness of the parties to participate in good faith to reach a settlement. After all, the goal in every mediation should be achieving closure now.
Mediation should be a prominent tool in every litigator's tool box. Like any other tool, the key is to know when to use it. But, how do counsel identify when their respective clients are ready to hammer out a compromise. Legal disputes can be resolved through mediation at many points along a continuum. Experienced counsel will consider whether to mediate before litigation is filed, shortly after the complaint is filed, after the parties have received their first invoices from their law firms, after party and key witness depositions have been taken, only after motions for summary judgment are heard, just before expensive scheduled expert depositions are to begin, or on the eve of trial.
As a litigator of employment lawsuits for over three decades, I feel that I developed an instinct an almost sixth sense for knowing when a case was ripe for mediation. Naturally, I had far greater insight about my client's intentions than I would about the opposing party. But, still I generally could guess right about whether the other side was ready. Of course, I would know I was off base if I broached going to mediation with opposing counsel and was shot down. Fortunately, that was the rare exception.
Although all legal disputes have some similarities, the right and wrong times to mediate are very variable and unique to each case. In most cases, each party's readiness to compromise will vacillate as the litigation unfolds-- depending on what is learned during discovery, counsel's evaluation of the credibility of the witnesses, the outcome of the summary judgment motion, the anticipated cost of continuing the litigation through trial, etc.. Most experienced litigators and mediators will agree that mediation works best after sufficient facts are identified, but before significant costs are incurred. In some cases the type of information that can readily be exchanged within the mediation framework prior to any formal discovery--will provide each side with the information it needs to evaluate its case and to responsibly negotiate a settlement before the attorneys have put in substantial billable hours.
Obviously, the opportunities for savings in legal fees and other tangible and intangible costs are greatest if mediation takes place early on. Then again, an early mediation may be impractical if either party determines that it must engage in more extensive discovery before the parties will be ready for meaningful settlement negotiations and mediation. In those situations, mediation will have to be deferred until sufficient discovery has taken place. The desire to await the judge's decision on a dispositive motion is another reason sometimes given for deferring mediation. However, if mediation is delayed until pre-trial activity is substantially completed, the potential benefits and therefore, the parties' incentive to mediate-- may be greatly reduced.
Psychological factors, ego, and emotion also enter into the equation as to the stage(s) of the dispute when mediation will be most productive. The animosity often encountered at the outset of a dispute may need to subside gradually before the parties are ready to engage in meaningful negotiations. Or, it may be that the parties simply are not prepared to [follow John Lennon's advice] and "give peace a chance," until they have suffered the burdens of full scale pre-trial activity for a while. For the company, mounting legal costs without an end in sight compounded by the time its managers and other staff are spending in connection with the preparation of the defense will be sound reasons to look for a method to achieve closure sooner than later. For a plaintiff in a wrongful termination case, the incentive to settle rather than limit his options to a possible big payday from a jury, will be enhanced if his savings are running out and he has no other source of income.
It's my experience that the best time to bring in the mediator is when the case is at a juncture at which both parties are evaluating or reevaluating their positions and strategies. That's when the parties are most flexible and a skilled mediator can be most persuasive. That famous proverb "Strike while the iron is hot" most certainly is apropos for getting your case before a mediator.