Don’t Wait To Mediate: Why Early Mediation May Be Your Dominant Strategy

We litigate cases and are confident in our ability to effectively advocate on your behalf. So why write a blog post encouraging you to consider mediation early on in a legal dispute? Because early mediation may well be your dominant strategy. 

In game theory, a dominant strategy is the course of action which results in the best outcome for one party regardless of what the other party does. In mediation, all interested parties come together with a neutral third person who helps facilitate a discussion as the parties work towards negotiating a settlement. Mediation presents an opportunity for parties to save the time and money they would spend litigating their dispute while affording them a measure of control and certainty over the outcome. Mediation also conserves judicial resources, and many court rules now require mediation of claims. Nevertheless, the timing of mediation may significantly impact your ability to obtain the best possible outcome. 

  1. Time Is Money

In a legal dispute, the clock is always ticking and costs go up for everyone involved with each tick of the clock. The higher your attorney’s fees and court costs, the less room you have to compromise and the less money you will save by doing so. Bear in mind that attorney’s fees are rarely recovered at mediation. This means your legal fees come straight out of pocket. 

Let’s say you have a claim for $20,000. If you mediate when you and the other party have only spent $2,000 each on legal fees, there is more room to negotiate as opposed to later on when you and the other party have each spent $6,000. If you mediate and settle for $12,000, you walk away with $10,000 in your pocket in scenario #1 but only $6,000 in scenario #2. Meanwhile, the other party walks away having spent only $14,000 in scenario 1 but $18,000 in scenario #2. At that rate, the other party may decide he/she is better off rolling the dice at trial than settling at mediation. 

  1. How To Burn Bridges 101: File A Lawsuit.  

We tell our clients all the time to carefully consider the relational consequences before filing a lawsuit. At best, filing a lawsuit will negatively effect the relationship between you and the other party. At worst, a lawsuit may irrevocably sever the relationship. And these detrimental effects worsen the farther along you get in an inherently adversarial process, which increases the animosity and exacerbates differences between the parties over time. In today’s legal climate, where most cases are subject to mandatory mediation somewhere along the line, mediating before a lawsuit has been filed can be particularly advantageous if you hope to salvage the relationship, or if you would at least benefit from parting amicably. For these reasons, mediating your legal disputes sooner rather than later gives you the best chance of coming to an agreement–and avoiding protracted litigation will save you the most money.

  1. Get Creative.

Mediating your dispute early on maximizes space for creative solutions. While litigation is essentially a zero sum scenario in which whatever one side gains comes at the expense of the other, mediation doesn’t have to work that way, particularly where the parties mediate before incurring significant legal expenses and entrench themselves into positions which limit their options. At an early mediation, parties are more likely to have the leeway to think outside of the box and find a solution which serves both of their purposes. A classic illustration of this win-win scenario involves a pair of siblings fighting over a lemon. A parent cuts the lemon in half. Sibling #1 takes his/her half and squeezes it to make lemonade and discards the peel. Sibling #2 zests the peel of his/her half to use in a recipe and discards the juice. Both siblings could have shared the entire lemon, which would have better served both their purposes, but instead each ends up with only half of what he/she wanted. When you engage us as your attorney, we add value to the mediation process by, among other things, helping you to explore creative solutions/possibilities. The earlier the mediation, the greater the potential for us to add value through innovation.

  1. Listen, Watch, and Learn.

What if the other party doesn’t settle or refuses to make reasonable efforts to do so? Even where the other party isn’t playing ball, early mediation still offers significant advantages. For one thing, mediation can help you and your attorney gain a more complete understanding of the facts, as well as the claims and arguments the other party will advance down the road. Utilizing mediation as an investigative tool early in the process may give you a head start as you prepare. It could also save you time, energy, and expense in the discovery process. 

Moreover, mediation presents an opportunity to delve beneath the other party’s positions in order to ascertain their underlying interests. As your attorney, we will work with an effective mediator at mediation to identify the other party’s real motivations.  For instance, we can work with you to craft proposals which serve your purposes while also giving something which might be of value to the other party. If the other party rejects the proposal, you will nonetheless learn something about what the other party truly values. The mediator may also challenge the other party to make a counterproposal that serves its purposes and also addresses the purposes you have identified.  Gaining access to all of this information early on in your case may provide a strategic advantage in litigation, even if the other party fails to make a good faith effort to resolve the dispute at mediation.

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