By: Donald C. Turner
One of the keys to a successful mediation is knowing when it is time to mediate. Starting a mediation prematurely is unlikely to lead to a resolution and often makes the parties disinclined to try mediation at a later point when it might very well be successful.
So what is the optimal time to start the mediation? It is not an easy question to answer but one thing is clear: a mediation is highly unlikely to lead to resolution if it occurs before all parties have all the relevant information. This is so because the parties simply can not evaluate whether a proposed settlement is warranted before all the relevant information is at their disposal. As a result in the litigation context, most mediations should not commence before all relevant discovery has been completed. Oftentimes impending deadlines provide a fruitful time to start a mediation. This is why so many mediations are successful when conducted on the verge of trial. At that point the parties are often times more inclined to compromise in order to avoid the uncertainty and expense of trial.