We all know the things we need to do to give mediation the best chance of settling our cases. We know to have our clients fully prepared for what to expect, have a solid grasp of the law and facts and what facts can be proven, and what our clients’ BATNA and WATNA are. We know how to select the best mediator for the case. But have we made sure that the mediation will be scheduled for the right time (stage) of the case? The timing of mediation is an often overlooked but very important factors for successful mediation.
Too Early?
The parties don’t have enough information (not enough investigation, discovery, motion work, etc.) to have a grasp on damages and chances of success at trial.
Too Late?
The parties become pot committed (as we poker players say). Too much money, time, and sweat (emotion) has been put into the case to settle for what would have been reasonable terms earlier in the process.
Avoid the pitfall of scheduling mediation for the wrong time. One suggestion is to discuss the issue of the right time for mediation with opposing counsel while you are discussing which mediator to use.