Published: October 2022
Written by: 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 pre-suit 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/alternative-dispute-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.