David Taylor | Bradley Arant Boult Cummings LLP | May 14, 2019
Effective representation of clients in construction mediations takes more than throwing together a mediation statement at the last second and showing up at the mediation. Doing it right requires the same kind of due diligence and work that goes into preparing for a key deposition or even trial. Great “mediation” lawyering is essential and is the best way to get to an acceptable deal. Over the years, I have compiled a list of the 10 most horrible, terrible, no good, “bang your head against the door” mistakes that I have seen lawyers make before, during, and after mediations in which I was the mediator. Below please find No. 10, and look for #’s 1-9 in future blog posts!
Number 10: Mediating Too Early or Too Late
Every dispute is different. There are no firm rules as to when mediation should be considered. If the parties have a history, are in an ongoing relationship, will deal with each other in the future; and the legal fees/expenses will be substantial, it may make sense to try to set up an “early” mediation, even prior to the filing of a lawsuit. Sometimes the contract’s ADR clause requires mediation prior to litigation/arbitration. While those clauses can be waived, the issue is always whether the parties/counsel have enough information about the dispute to make good business decisions about settlement. Many times I have heard counsel say “I will be able to get an expert to support our claim,” which is not very persuasive to the other side when it is an expert-driven dispute. Sometimes there is a real concern that “final” offers made in an early mediation become sticking points for future settlement discussions. Early mediations can sometimes cause more problems, and make the parties madder at each other, especially with ego-driven clients (and yes, lawyers!). I have found that an early mediation is more likely to work is if there is a good working relationship between the lawyers who, working with an experienced mediator, can help manage the entire process (and their clients) to try to get an acceptable settlement early in the dispute.
What about “late” mediations just prior to trial? Will the parties agree to postpone a trial and stop the preparation process for a late mediation (of course, the Judge has to approve as well)? There are practical issues involved, such as finding a capable mediator at the last second and setting aside a full day (or longer) for mediation with trial counsel who have been furiously prepping for trial and who probably believe that the request is a stall tactic. My general experience is that since both sides know every inch of the other side’s case immediately prior to trial, if there is to be a last minute settlement, including during a trial, that can best accomplished between the parties/counsel without a mediator’s involvement.
So, the preferred timing for mediation is most likely sometime between early and late: a time when the parties know enough about the dispute to make well reasoned settlement decisions but not so late that the entire investment necessary for trial has already been made.