ADR CORNER
Is It Ever Too Early to Mediate ?
AL LASORTE , JR .
Mediation is mandatory before trial in nearly all courts . This makes sense , since mediation so often results in settlement , negating the need for a trial .
But if you wait until just before trial to meditate , your clients will have already spent many tens , or hundreds , of thousands of dollars on attorneys fees and costs , a potentially insurmountable hurdle to settlement . This is particularly true in smaller cases , where the fees and costs are frequently higher in proportion to the amount in controversy .
This is why I ’ m a big proponent of early mediation . Get in before all that pre-trial money is spent on discovery , experts , etc . - the earlier the better . The longer you put mediation off , the higher the expenses will be for all parties , and correspondingly , the farther apart they will be once they finally meet to search for a settlement number everyone can live with .
But early mediation does have one big drawback : the lack of meaningful discovery beforehand . Discovery is what most of all that pre-trial money buys . Less of it before mediation means the parties ’ costs may still be low at that point . This is good . But without discovery , the parties will know a lot less about the other side ’ s case . And fear of the unknown hurts settlement prospects . This is bad !
So , when is it too early to mediate ? When are your clients better off spending some pre-trial dollars to learn about their case before sitting down to mediate ? Here ’ s my lawyerly answer – “ It depends . Every case is different .”
Now , here ’ s my mediator answer ( and I like to think I ’ m probably a better mediator than I was a lawyer !): “ It ’ s never too early , if the attorneys can cooperate to educate the parties by voluntary exchange of documents and other discovery .”
I ’ m not proposing handing over any evidence a judge is likely to sustain your objections to down the road . But we all usually have a general idea of the types , and extent , of discovery the court is likely to permit . Agree with opposing counsel to have both sides exchange that evidence , voluntarily , right at the outset of the dispute . Then proceed to an early mediation and settle the case .
For instance , in a real estate deposit dispute , agree up front to buyer and seller exchanging all text messages and emails between them and the brokers . This will be discoverable eventually anyway . Getting it early ( and inexpensively ) gives both sides a rough idea as to how that testimony is likely to play out at trial , even before lengthy ( expensive ) depositions are taken . It ’ s not perfect , but it helps lessen clients ’ fear of the unknown , which is the enemy of successful mediation . Do everything you can to reduce that fear , right up front , on both sides . Then go right to mediation , and hurry up , before everybody ’ s fees and costs go up !
Note – some types of cases require presuit mediation ( real estate deposit disputes and condominium membership disputes , for example ), giving the parties no choice but to mediate before any meaningful discovery can be compelled from their opponents . But here , too , counsel can increase the chances for mediation success through voluntary exchanges of documents and other evidence .
In some cases , particularly ones with no love lost between the parties , clients may not be willing to turn anything over to the opposition without a court ordering them to . And there truly are some cases in which the parties won ’ t be satisfied that their opposition isn ’ t hiding the ball until having spent large sums to search in every nook and cranny .
Such cases don ’ t generally lend themselves to early mediation . If you size up either side as being so intent on seeing their day in court that early mediation seems futile , by all means save your clients the expense of mediation and dive right in on discovery ,
But such cases are pretty rare . And they are usually the most difficult cases to settle at a later mediation as well . So don ’ t be discouraged if early mediation is unsuccessful . Go try your case .
Some lawyers are reluctant to suggest early mediation for fear of making their clients look too eager to settle . Good communication between opposing counsel is key to reducing such concerns . The lawyers can jointly recommend early mediation , rather than it coming from one side or the other , thereby insulating both parties from this concern .
Bottom line , early mediation is appropriate in most cases . Weed out the hardcore parties hell-bent on having their day in court , and early mediate all the rest . If you and opposing counsel do everything you can to ensure all parties have the information they need , and early mediation will be the way to go .
For additional ADR tips and resources , go to https :// www . palmbeachbar . org / alternativedispute-resolution-committee /
After a long career at Shutts & Bowen LLP as a commercial litigator specializing in real estate and general business cases , Mr . LaSorte now acts exclusively as mediator and expert witness through his own firm , Alfred A . LaSorte , Jr ., P . A . d / b / a LaSorte Mediation . ( www . LaSorteMediation . com ). Mr . LaSorte can be reached at ( 561 ) 286- 7994 and Al @ LaSorteMediation . com .