Most lawyers and mediators have their own list of elements that are essential to a successful negotiation of legal claims. These lists are generated after years of experience litigating and settling lawsuits. In addition to simply being prepared and choosing the right mediator, one key element everyone agrees on is knowing the right time to mediate.
When can a case be settled?
The ideal situation would be for parties to a lawsuit to mediate and settle the dispute as soon as possible. The reality is, some parties are more inclined to wait until the eve of trial. Why? Because some believe in the strategy that concessions are more likely to be obtained when the other side is faced with a crucial deadline – like trial. Most clients want to avoid the time, cost, and uncertainty of a trial, if at all possible.
However, the truth is, there are many cases that can be settled much earlier in the litigation process, but only after the attorneys have had the opportunity to investigate. It is necessary for the parties to make an honest evaluation of their client's position.
So when is the right time to mediate?
The answer is different for every case. If the parties try to mediate before the attorneys have had a chance to investigate and make an assessment of the strengths and weaknesses of their case or defense, the chances of settling are not very high.
Probably the best way to assess whether the time is right is to talk to the other side. Find out whether your adversary feels the case is ready to be mediated, as well as the reasons why or why not. Another option is to ask the mediator to speak confidentially with both sides and determine whether realistic negotiations are possible at that point. However, if the court is imposing mediation in your case, you may not have a choice.
Should mediation in lawsuits be mandatory?
More and more, courts are requiring mandatory settlement conferences in cases. In some situations, mandatory mediation doesn't make much of a difference because attorneys and their clients still settle their cases when they feel they are ready to do so. Yet, with the number of lawsuits increasing, and judges' dockets becoming more and more crowded, courts use mediation more frequently, to encourage parties to settle. Regardless of when the parties may be compelled to mediate, cases are more likely to settle when the time is right. The most important thing to keep in mind is that cases can be settled, even early on, if the parties are highly motivated to do so, and committed to negotiate in good faith.
If you have questions about mediation, or questions regarding your employment rights, please contact Wrady Michel & King , either online or by calling us at (205) 265-1880.