Page 37 - Becoming a Better Negotiator

WHEN SHOULD YOU METDIATE
he simple answer is as early as possible that is consistent with our advice that the parties adequately prepare for the negotiation. As
this paper illustrates, there is a lot of information necessary to properly prepare for mediation and may require discovery and perhaps even some briefing on dispositive motions. Although preparation is stressed here, opportunity to resolve matters before positions harden and potentially large amounts of money are spent in discovery should be explored.
It is a rare litigator who has not participated in a mediation that stumbled when one party, or another, concluded that they did not know enough about the claims or had an adequate opportunity to evaluate the claims. Pre-litigation, or even early-in-litigation, mediation can offer significant cost saving benefits. It is equally likely to be a necessary waste of money because the parties are not prepared. Unfortunately, this is often the result in court- ordered or contractually required mediation which occurs too early in the process for the parties to appreciate the facts, the risks, and the costs of litigating the case through trial. On the other hand, if the parties convene mediation
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