Timing Your Next Mediation

Allen Schreiber • September 29, 2020
Allen Schreiber, Birmingham Arbitrator and Mediator

Last week, I mediated a medical malpractice case. The attorneys agreed to schedule the mediation before taking experts’ depositions. The parties had been deposed. The timing of the mediation was perfect, and the case resolved. There is a high probability that, if the attorneys had incurred the additional expenses related to obtaining the experts’ testimony, the parties would have been unable to reach a compromise.


I am often asked, “When is the best time to mediate my case?” Absent a Court Order, there is no “set time” you must schedule mediation. However, there are several factors that may influence the ability of the parties to reach an agreement at various points in the litigation. These often include the parties’ emotional states, the gathering of information that would be useful in making decisions, and the cost of continuous litigation.

1. Emotional Considerations


Throughout the litigation process, the parties often experience a roller-coaster of emotions. Sometimes, the longer the process, the more the parties are dug in and the less open they are to compromise or influence. Emotions may cloud judgement, and could prevent one or both parties from reaching a reasonable agreement. The parties could experience strong emotions at the outset of litigation, or perhaps months or years into the process. Awareness of your clients emotional state can enhance your ability to choose the timing of mediation.


2. Availability of Information and Documents


Almost every case relies upon some outside information when trying to reach a resolution. Negotiations at mediation will proceed far more smoothly and successfully if you have the information needed to make an informed decision.


3. Reducing Cost and Length of Litigation


Finally, mediation will usually have a significant impact on the costs of litigation. The sooner you attempt mediation, and hopefully reach an agreement, the less money you will spend on attorney’s fees and any related discovery costs.



Schedule your next ADR session via our convenient online calendar, or call Carol Waldrop at 855-754-8807.