Is your case ripe for mediation?

 

 

Cases can fail at mediation for no reason other than timing.  While a skillful mediator can help disputing parties overcome many obstacles if the parties are not ready to mediate – then a settlement may be impossible no matter what the mediator does.

What does it mean to be ready to mediate?

 

I am not talking about mentally and emotionally prepared to enter into a negotiation.  Believe it or not, resistance to settlement and hard-headedness are some of the obstacles almost any competent mediator can readily overcome.  The potentially insurmountable obstacles arise when that parties are literally not ready to mediate because the case is not developed to the point that a meaningful negotiation can take place. 

 

 

We often refer to a case being ready for mediation by describing it as “ripe”.  A case that is ripe for mediation is not necessarily one that is trial ready.  And by understanding where in the trial preparation continuum a case is ripe for mediation and scheduling accordingly - the likelihood of settlement is increased and a better outcome for al parties is probable.

 

Ripe for mediation checklist:

  • Complaint is filed

  • Answer is filed

  • Initial discovery from both sides is propounded and completed

  • Fact depositions are completed

  • Experts are disclosed and expert deadlines are passed

  • Expert opinions shared – generally I would say detailed and verified expert opinions shared but prior to expert depositions

  • Monetary Demand is Made

  • Initial Responsive Monetary Offer is Communicated

At the point the above list has been completed you are ideally situated to mediate. 

 

 

Why is this an ideal time to mediate? 

 

At this point you have a pending lawsuit, with a known fact base, disclosed experts opinions and negotiation underway. 


Mediate before the experts are “done”.

 

Mediating prior to completion of expert discovery (disclosed opinions but without depositions) provides considerable cost savings to both sides.  Often times the expense of litigation increases dramatically, when experts begin to make appearances.  So mediate before those appearances take place and those expenses skyrocket. This enables plaintiffs to settle for less and defendants to offer more.  The extent of details in the disclosed expert opinions will necessarily vary from case to case.  Generally, the more complex the case, the more expert opinions will be necessary for a case to be “ripe”.  I have been in cases where complete discovery (including depositions) of initial experts was necessary but the timeline called for secondary deadlines of rebuttal experts and mediation worked quite well between the two deadlines. 


Mediate after a demand has been made and a responsive offer has been given.

 

This simple milestone can save considerable time in mediating a case.  Surprisingly I have been in mediations where several hours were spent in caucus with one side or the other discussing either what an initial demand should be or whether there is authority to make an offer towards settlement.  By having a demand and offer in the bag, there is certainty that the defense has authority to negotiate and the plaintiffs and counsel have given some thought to the case valuation.  I prefer that a case has proceeded pre-mediation to the point of a reasonable demand and a reasonable first offer – but those are subjective concepts.  For that reason, I limit the checklist to “a demand” and “an offer”.

Increase your chance of success.

 

A settlement attempt can fall short for many reasons.  But the risk of failure can be reduced by mediating when the case is truly ripe for mediation.  Scheduling a mediation  before the case is ready, before the items on the checklist have been completed, greatly reduces your chance of success.