TIMING IS EVERYTHING
The timing of a mediation can be almost as important as the facts of the case. For example, it is generally accepted that mediation immediately before trial results in a settlement because of concerns about additional fees and costs and the impending uncertainty of trial. So, rather than wait for the court to order or suggest that you mediate, arrange for that process when it is most advantageous to your client.
- Mediate before the complaint has been filed – This is the optimum time to save fees and costs. The party who is more knowledgeable about the facts also has an advantage. But such knowledge can be an impediment to settlement if the other, less informed side cannot confirm the truth or existence of those facts. Thus, the party in control of the facts should consider whether or not to tell the opponent about them. Further downsides of pre-filing mediation are that the facts and contentions have not been developed by either side and there may not yet be insurance coverage.
- Mediate soon after the complaint has been filed – This period, like pre-filing mediation, saves fees and costs, although not as much as the latter, but has the benefit of showing that the plaintiff is serious about the case. Filing can also bring about a covered claim.
- Mediate immediately before or after a motion for summary judgment/summary adjudication has been filed – If the motion is supported by sound legal and factual contentions and might be granted, the party opposing it should attempt to settle the case before the motion is to be heard. At the same time, the moving party should take advantage of this opportunity. After such a motion has been denied, the opposing party is generally more emboldened and in a better position to claim that it has a good chance to win at trial.
- Mediate just before trial – As mentioned above, the uncertainty of what a jury might do and the fear of additional fees and costs, especially if the trial will be long or there is a prevailing party attorney’s fee clause or attorney’s fee statute, are prime reasons for settling “on the court house steps.” Additionally, mediating just before trial is an opportune time because both parties know each other’s theories and can accurately assess the pluses and minuses of trying the case. The downside of a delayed mediation is it allows the opposing party to become familiar with the facts and increases the client’s expenses.
Judge Michael D. Marcus (Ret.)
ADR Services, Inc.
1900 Avenue of the Stars, Suite 250
Los Angeles, California 90067
(310) 201-0010
Copyright Michael D. Marcus, April 2010
Please visit my website at www.marcusmediation.com for information about my mediation and arbitration background and experience. Copies of my previous Mediation Messages and Arbitration Insights are available by going to the articles link on the website.