The Right Time to Mediate?

When is the right time to mediate?

Usually that is when each party has sufficient knowledge of the other's case that the opportunity for settlement can be maximized. Discoveries have been completed. Undertakings have been substantially answered and desired records, or other information, produced to the other side. Key experts reports have been delivered / exchanged (well in advance of any scheduled mediation date).

A premature mediation can generate future difficultes in the litigation process. It can sometimes lead to a hardening of positions, making settlement later on more difficult. And, one or more of the parties may be reluctant to arrange a further mediation, even after the issues which made the original mediation premature have been addressed.

Conversely, waiting too long to schedule a mediation can mean that accumulated litigation costs become, in and of themselves, an impediment to settlement.

The trick to picking the right time to mediate is to identify the "happy median" - the point where there enough information has been exchanged to satisfy all parties that they have what they need to adequately assess the case, but without too much time and expense having been spent getting to that point.