{"id":904884,"date":"2025-10-08T15:34:30","date_gmt":"2025-10-08T21:34:30","guid":{"rendered":"https:\/\/www.myconstructionexpert.com\/blog\/?p=904884"},"modified":"2025-10-08T15:34:32","modified_gmt":"2025-10-08T21:34:32","slug":"early-mediation-is-your-case-a-likely-candidate","status":"publish","type":"post","link":"https:\/\/www.myconstructionexpert.com\/blog\/early-mediation-is-your-case-a-likely-candidate\/","title":{"rendered":"Early Mediation: Is\u00a0Your\u00a0Case a Likely Candidate?"},"content":{"rendered":"\n

Philip E. Cook | JAMS<\/a><\/p>\n\n\n\n

Many cases can benefit from early mediation<\/a>.<\/p>\n\n\n\n

Parties often reject the notion of early mediation because they believe they need more information to resolve the dispute. In some cases, more information is necessary. In other cases, however, parties can assess litigation outcomes\u2014based upon what they know, can reasonably anticipate and are willing to exchange in connection with the mediation\u2014and meaningfully value the case without further litigation.<\/p>\n\n\n\n

Benefits of early mediation<\/strong><\/h4>\n\n\n\n

It can set the tone. Early mediation can help set a productive tone for the litigation. Early in my career, a senior attorney instructed me never to bring up settlement with the other side, believing it would be taken as a sign of weakness. When I later became responsible for cases, I began to raise settlement options early, expressing this premise: \u201cWe are on two parallel tracks, one to settle the case, one to try it.\u201d And I proposed not letting one interfere with the other.<\/p>\n\n\n\n

It lets you learn about the case. Whether representing plaintiffs or defendants, busy litigation counsel tend to advance their preparation of a case for the next deadline. In some firms, lead counsel may rely upon others initially to analyze and prepare a case. In these instances, early mediation can be a catalyst to prompt a more comprehensive and candid consideration of a party\u2019s claims or defenses. Exchanged briefs may clarify or provide additional information about the other side\u2019s position. And early mediation offers an opportunity to learn about the opposing party and their counsel.<\/p>\n\n\n\n

It gives you a chance to settle the case. The benefits of an early resolution can be significant. Of course, ongoing litigation efforts cease and resources are preserved. Removing the stress (or at least the distraction) of a case allows parties to move on and turn their attention to other matters. An early mediation provides a forum for parties with intensely personal connections to a dispute to \u201chave their day in court\u201d sooner rather than later. For a defendant, risk becomes certain. And for a plaintiff, funds become available immediately. <\/p>\n\n\n\n

It provides information. Without settlement, one primary value of early mediation is information\u2014about both the other side\u2019s case and yours. Early mediation is an opportunity to develop your narrative and analyze how it will play out with a competing narrative. It requires a focus on damages and clarity about the range of potential recovery or risk. It may prompt you to revisit your expectations about case outcome (and thus case value)\u2014whether because of new information or perhaps a mediator\u2019s reaction to your case.

When you properly prepare, early mediation should prompt parties and their counsel to consider litigation objectives\u2014both in terms of what a litigant wants from the case and the associated costs (whether personal or financial). For a party funding their own legal expenses, a litigation budget delivered in advance of mediation will allow the party and their counsel to conduct a cost\/benefit analysis of further litigation.<\/p>\n\n\n\n

Finally, early mediation\u2014when approached with transparency, with reciprocity and in good faith\u2014can create a path forward to revisit settlement as the litigation progresses.<\/p>\n\n\n\n

Downsides of early mediation<\/strong><\/h4>\n\n\n\n

It can be frustrating. A mediation that does not result in settlement often results in frustration or annoyance, usually directed at the other side:<\/p>\n\n\n\n