Optimum Timing for Mediation: Early . . . but Not Too Early

By: Donald L. Swanson

Mediation should occur “at some reasonable point,” (i) “before discovery is completed,” and (ii) after “critical motions have been decided.”

–Suzanne J. Schmitz, A Critique of the Illinois Circuit Rules Concerning Court-Ordered Mediation, 36 Loy. U. Chi. L. J. 783 (2005).

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Early timing (photo by Marilyn Swanson)

Early Mediation Referral

Law Professor Suzanne J. Schmitz says that mediation referrals early-in-a-case are better than later referrals. Here’s why:

–Early referrals “catch the parties” at a time when they are not yet “firmly entrenched in their positions” and are “more flexible”

In support, she cites:

A study finding that “recently filed cases are the most likely to settle”; and

Other studies showing that early mediation referrals yield more settlements, fewer substantive motions, shorter times to resolution, and less discovery costs.

The primary caution she mentions is this:

–“1ocal litigation customs” will “affect lawyers’ comfort with the early use of mediation.”

Early Mediation Timing

Prof. Schmitz references two procedural matters that inform decisions on timing for an early mediation: discovery and dispositive motions.

–Discovery

Odds for a mediated settlement are “reduced somewhat” when parties and their attorneys “lack critical information” about their case. One set of studies found, for example, that “one-fourth” of all cases that do not settle in mediation fail to do so “because of missing information or incomplete discovery.”

Since discovery progression is important to the timing of a mediation referral, the question becomes this:

–What amount of discovery is needed before a meaningful mediation can occur?

Answers to this question are, usually, stated in generalities. For example:

One study suggests that pre-mediation discovery must allow parties to “assess the soundness of their positions,” determine “a fair settlement value,” and be ready to “resume litigation without delay if mediation fails”;

Another suggests that “discovery of experts” before mediation is “probably unnecessary”; and

“A commonly accepted rule of thumb” is that discovery should be sufficient for “both sides” to “properly evaluate the case.”

Prof Schmitz suggests that attorneys for parties in the mediation “can assist the court” in determining “the best time” for an early mediation referral.

If, during a mediation session, parties “realize the need for additional discovery,” the mediator should be able to “help the parties develop a plan” for completing the needed discovery “expeditiously” and, hopefully, “without court intervention.” Once the additional discovery is completed, the mediation session can reconvene.

–Dispositive Motions

According to Prof. Schmitz, “most of the research suggests” that a court should decide dispositive motions before “referring a case to mediation,” because parties are unlikely to settle when a dispositive motion is pending.

The same is true with requests for interim or emergency relief (e.g., requests for preliminary injunction and protective orders):

If the need for interim or emergency relief should arise during mediation, the parties should be able, “with the help of the mediator,” to resolve the related issue; but

If not, the parties can seek a court ruling thereon and, once the ruling is received, either reconvene the mediation session or move the case toward trial.

Conclusion

Accordingly, Prof. Schmitz reaches the conclusion quoted at the beginning of this article:

Mediation should occur “at some reasonable point,” (i) “before discovery is completed,” and (ii) after “critical motions have been decided.”

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