When is the Right Time to Attend a Mediation?

When I was an attorney, I often asked myself, is this case ready to go to mediation? Or, alternatively, is it too late?  Do both parties have enough information (i.e. is it too early)?  Are both parties too invested – in time and money – and should we just take our chances at trial (i.e., is it too late)?  As with almost every legal issue, the answer is, it depends.  Here are just a few key points to think about when determining the right time to attend a mediation:

  1. Have both sides had an opportunity to conduct a fact investigation?  On the defense side in employment matters, initial fact investigations usually involve interviewing company witnesses, reviewing company emails, policies, personnel files, and other relevant records.  On the plaintiff side, plaintiff’s attorneys usually don’t have the benefit of doing a thorough fact investigation until after at least some discovery – formal or informal – has been conducted because they may not have access to the witnesses or records.  As an attorney, and now as a mediator, I have always felt that it is beneficial to both sides who want to attend early or pre-litigation mediation to exchange information.  If one side doesn’t know anything about the other’s claims/defenses, it is extremely difficult to properly evaluate the case.  Of course, a mediator can help in this process during the mediation, but it is important for the parties and attorneys to go into the mediation equipped with at least a general understanding of where the other party is coming from.    

  2. Do you have your client’s buy-in?  Employment matters are often highly emotional and personal on both sides of the aisle.  It’s normal for a plaintiff or defendant to not like the idea of settling – they want to prove a point, they want their day in court, they want the other side to suffer through until the end.  An effective mediator can, and often does, play a big role in changing the skeptical party’s mind in that regard.  But in order for a mediation to be successful, there has to be at least some interest in settling the case.  In some cases, both parties might want to avoid the costs and headache of litigation and want to settle early.  In other cases, it might be that the party has to have their deposition taken first, or they may need to lose a big motion before they obtain the level of interest needed for a mediation to succeed.  Or, perhaps, they need to be on the brink of trial (more on that below).  Every case is different and every client is different, but every mediation needs the parties’ buy-in.

  3. Are there any big events coming up in the parties’ personal/business lives that might impact timing?  In every case, litigation is only one part of the parties’ lives.  Plaintiff employees still need to get up every day and go to work or school or take care of their family.  Defendant employers still need to run a business, make sure their employees are being productive, and make sure they are planning for their business’s future.  Perhaps the employer defendant is thinking about an upcoming sale or merger and they want to settle the case before they can finalize the deal.  Or if it is a high profile matter, they might want to settle early before it gets too much press.  On either side, maybe there is a pending bankruptcy filing that needs to be taken into account.  Or on the plaintiff employee side, they might be planning an out-of-state move, and litigating in California for the next two + years would be a logistical nightmare.    

  4. Have the parties invested too much time and money to make settlement appealing?  While many attorneys have experienced the joys of settling on the courtroom steps the morning before a final status conference or jury selection, there is a point in most cases where the parties have invested so much resources (time, money, their physical/mental health), that they rather take their chances at trial/arbitration than settle.  However, some parties need to have gone through the hardship of litigation in order to be ready to settle.  

Seeing that most cases go through at least one mediation, there is no single right or wrong time to attend mediation.  However, thinking about the above issues for the specific case at hand will assist in finding a good time to mediate.