The success and efficiency of mediation depends, to large degree, on timing. If it occurs too soon, critical facts may not be found and counsel may not be able to determine the scope of the claim or the risk of exposure. In addition, defense counsel will miss the opportunity to bill some number of hours in the case. Wait too long and opportunities vanish as time and money investments increase. This article addresses ways to resolve these tensions and find avenues to mediation that are successful and early in the process so as to conserve costly expenses and resources for all involved.
Rather than commit to resolution at the outset of a case, parties and counsel can and should have a system that assesses cases for early resolution. Approximately three to four months after receiving notice of the dispute, the parties should consider current strengths and weaknesses, factual allegations, relevant law, economic and non-economic options, legal venue and strategies intended to achieve outcome goals. There is little to lose with an early assessment.
If a particular case seems like a good candidate for early resolution, the next step would be to engage a mediator to conduct a confidential investigation and diagnosis of the dispute. Ideally, courts would have programs that allow parties to enter this exchange without loss of leverage, perceived or otherwise. Programs, public or private, that reach out to both sets of attorneys and seek respective interests in mediation in a confidential manner can open the doors to early mediation.
In early mediation, parties can exchange targeted, key information identified by the mediator – often this will establish the claim, address anticipated or actual impasse or respond to any other issues that might prohibit meaningful settlement discussions. The information exchanges can occur in steps since, for example, the damages profile may take time to develop. Disputes that may emerge over the exchange of information can be resolved with the intervention of the mediator. If not, the parties can allow the mediator to act as an arbitrator on that limited issue.
As described above, the role of an early mediator is larger and more flexible than usual. With an early mediator, the parties have a partner in getting to the heart of the dispute and its resolution in the most efficient way possible. The costs for an early mediator are less than mid- to late-stage mediation and significantly less than full discovery. And, with the parties investing in settlement activities early in the process, early success is more likely.
The early mediation process is more than a one-time, daylong meeting, as commonly practiced. Regardless of case type, good mediators begin the process before parties meet — and with growing frequency — the process continues afterward. An early mediator, in consultation with counsel and the parties, can design a customized, expedited process intended to identify and overcome impasse. If the process is suspended for any reason, the mediator will continue to work with the parties to troubleshoot the problem and get talks to resume. Early mediation is flexible and is commonly used to resolve construction disputes that involve multiple parties and claims and large volumes of evidence.
The real potential for early resolution starts with a determination from lawyers to do business differently; to think about how cases tend to flow; to engage in settlement talks before the eve of trial; to interpret invitations to negotiate as opportunities that can produce good results for their clients; to listen to what clients really want and manage their expectations and anxieties more forthrightly. Most lawyers will say that they look for ways to save their clients time and money, but not as many take systematic, structured action toward that goal. Unless clients insist on it, outside law firms will be less inclined to conduct systematic early case assessments or early resolution efforts without changes to law firm economic incentives. Still, some law firms promote innovation and efficiency as selling points to clients and they are being retained by sophisticated, institutional clients in growing numbers.
Barry L. Gogel, a litigator and mediator with the Baltimore office of Rifkin, Weiner, Livingston LLC, can be reached at firstname.lastname@example.org. Jeff Trueman, an independent mediator in Baltimore and the former director of ADR for the Circuit Court for Baltimore City, can be reached at email@example.com.