It’s not always easy to spot trends. But one that I have noticed over the last year or two is an increase in the number of cases I am being asked to mediate in which litigation or arbitration proceedings have not yet been issued.

This produces different challenges. On the upside:

• The parties have not had years in which to entrench themselves in the unerring rightness of their cause, nor the irredeemable evil of their opponents. We have all seen the effect that many years of commitment to a particular position can have. Trying to encourage any other perspective after so long can be hard.

• The parties are generally less heavily invested in the case after a shorter time. This is certainly true financially, and so early mediation can avoid the horror of parties who have become committed to litigation simply from the need to recover their investment of costs in it. It is also true psychologically.

On the downside:

• Early on, parties are often keen to fight. They have their tails up. The sense of grievance they have is fresh and strongly held.

• The realities of being in long drawn-out litigation haven’t yet impacted on them. There is a heavy cost to fighting – in litigation, in civil wars, with neighbours, wherever. The cost can be financial, commercial, personal and much else. The reality of these costs is usually less clear to parties when passions run high early on.

• It is often harder for parties to justify to themselves compromising after such a short fight – a mere skirmish, not a war. There is something in all of us that wants to be able to say that we fought hard for what matters to us, that we did not fail to meet the challenge. So the capacity of parties to allow cold judgement to rule over impassioned commitment is probably at a lower level early on.

• Less information is available. This is often the case, although not necessarily. The natural ebb and flow of litigation usually leads to a clarification of arguments, and the disclosure of information. Our natural human bias tends to assume that such further revelations (through disclosure of documents, witness statements, or however) will inevitably endorse and support our beliefs. I have lost count of the number of times people in mediation have said to me “I am certain that our suspicions will be proved correct once we see their documents”. When pressed as to the reason for their certainty, it usually morphs from conviction into mere hope!

• Hope springs eternal. I often come across a perception amongst parties that somehow their position in the negotiations will improve with time, rather than get worse. Of course this may be true, but so may the reverse. When pressed, I rarely find that a party can articulate why their position might improve with time.

Notwithstanding the above challenges, my instincts still want to encourage parties to mediate early if there is a chance. Perhaps I am just an eternal optimist! But where I do mediate early, I have often found it important to discuss with the parties:

• The different upsides and downsides that, in my experience, they face in doing so;

• The implications which that will have for the mediation. For example, how will they deal with any information deficit? Do they have enough information to mediate at that stage? Are parties willing to “take a view” on these issues without seeing the underlying documents? And so on.

What is less clear to me is the reason for this apparent trend in mediating before issuing proceedings (or even whether it extends beyond my own personal experience). Mediation contract clauses drive some of it, and of course one is likely to learn of that as a mediator. The recent hefty increase in court fees in England and Wales has presumably also contributed to it – it is now an eye-watering £10,000 to issue a writ in London for a claim of £200,000 or more (rising from £1,315 before the March 2015 changes). But on a reasonable-sized claim that still shouldn’t make much of a difference. So what else is driving this? Is it an increased optimism or belief in the value of mediation? Is it commercial imperative to sort the matter out early and “move on”? Or is it because parties think that the courts will (effectively) require them to mediate at some stage, so they may as well get on with it now?

I would value comments from others on whether you see this trend or not, what you think is causing it, and what impact it has on the mediations that result.

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9 comments

  1. I am also seeing this trend, Bill. I say that it’s working: ADR is no longer the “alternative”, but the “dominant” means of resolving dispute. Another issue to consider is the enforceability of settlements that are created without the back up of court. There is a very clumsy mechanism, a confession of judgment, but truly these will be challenging if the terms of the settlement are breached later.

  2. Common sense? Proof we humans can still learn and benefit? Thank you yet again, Bill, for sharing. Best to you from a ‘Zonie pal (that’s what San Diegans call all those/us Arizonans who descend upon them each summer).

  3. Here in NJ, we have early mediation referral in civil court cases. It is up to the mediator to help manage the case and information exchange so the parties have enough info to take settlement decisions. I think early mediation is effective, although the mediator needs to develop skills to understand when the case is ripest.

    I find most of my cases settle either early (because the parties don’t want to spend the money on discovery) or late (because the parties don’t want to take the risk at trial).

    1. Thanks Marvin, good to hear what’s happening in NJ. I have always liked the idea of the mediator getting involved early to help manage the information exchange.

      As for “ripeness” for mediation, you are probably aware of Prof Bill Zartman’s definition, which I included in an earlier blog of mine on this site (Don’t Stop The Fighting). His criteria for “ripeness” to mediate are:
      • A mutually-hurting stalemate; and
      • An impending crisis (in a litigation context, that would be trial).

  4. In the Justice Court where I volunteer offers mediation to all cases and many never get to the courtroom. I feel mediation is getting more attention and I would like to see someone talk about mediation on the social media as people would begin to understand the choice mediation offers rather than a trial and a judge making the decision. I do realize confidentiality is important but a writer could make up a case to use as an example. I also assist in teaching at the University of Arizona law school to third year students. The students are harder to teach mediation than the parties I serve in court. Early mediation offers parties a resolution to end the story. It works most of the time. We do not have parties return to court after mediation is completed. Thanks for the discussion.

  5. I really like this analysis. I have been volunteering for 7 years in mostly court ordered civil and family mediations in the state of Texas. My dream is to quit my day job and mediate earlier than when the judge says he/she won’t hear a case until the parties have mediated. And to take a bit of time to help people work through the emotions and the issues.
    I think mediation offers a lot more than ‘settlement negotiations’. There are almost always as many different realities as there are parties and ‘facts’ aren’t always very helpful in such case. But there is a balance and sometimes it takes a court case to get the attention of the other side. Then the analysis of the probabilities in a case can really depend on information and timing.

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