Early Mediation Checklist

By Sherman Knight.

Early mediation requires a “jump start” over the typical mediation process if you are seeking resolution within 3 to 6 months. If you don’t pursue early mediation aggressively, before you know it, trial is just around the corner.

  1. Compare Litigation with Early Mediation with your Client


    • Litigation is an emotional train wreck. Can your client handle the emotional toil that comes with litigation? In most situations, attorneys meet with an individual and rarely meet the spouse. It is always a good idea to meet with everyone on your client’s side that might be affected by the lawsuit. (spouse, kids, business partners) There are several articles in the “resources” section that deal with this issue. Run them off and give then to your client.

    • Litigation damages family relationships. The spousal relationship is easily damaged over years of litigation. When one wants “justice” and the other wants to save what is left of their savings, the family relationships suffer.

    • Litigation damages business relationships. Is there the possibility of damaging a business relationship that you want to save?

    • Leave no stone unturned. Attorneys are trained forensically to leave no stone unturned. Combine that with the complexity of a construction dispute and it is going to be expensive.

    • Litigation exposes the skeletons in the closet. Is the case as good as the party claims it is?

    • Litigation exposes the skeletons in the closet. Does the other side know of your skeletons that may be immaterial to the case but exposing them may damage family or business relationships?

    • Litigation is expensive. Most clients cannot afford a trial much less the discovery. A single day of depositions including transcription cost is over $3000. If five witnesses are deposed, the parties budget may already be exceeded. Preparing a motion, a rebuttal and a court appearance can easily exceed $5000. An expert witness to inspect the damage and write a report is between $1500 and $5000. Even a simple construction defect dispute is expensive.

    • Litigation takes a long time. Litigation may take 36 months if there is an appeal.

    • Litigation is not cost effective. Discovery, depositions, interrogatories and requests for production, several motions, witness preparation, trial preparation, more motions, trial and a possible appeal are expensive. Sometimes the cost of turning every stone is more that the claim itself. Any estimate an attorney provides will not be very accurate because they can only estimate what their plan will cost. Because there is no way to predict what the other side is going to do, (they may force you to spend money on seemingly meaningless issues), actual costs are impossible to predict.

    • Litigation is not cost effective – Part 2. Is this one of those cases that is too large to ignore but too small for the full court discovery press under the court rules? If it is, early mediation is perfect.

      Early Mediation

    • Early Mediation minimizes emotional turmoil. Because early mediation can happen quickly, this concern is greatly reduced. Many parties will thank their attorney for moving things along so quickly.

    • Early Mediation minimizes damage to family relationships. When one spouse wants “justice” and the other wants to save what is left of their savings, early mediation is ideal. When the misery of a lawsuit is reduced from several years to several months, the damage to family relationships is minimized.

    • Early Mediation minimizes damage to business relationships. The bitterness that comes with extended litigation is eliminated possibility saving a business relationship that would otherwise be destroyed.

    • Early Mediation may preserve neighborhood relationships. You might be living across the fence from your next door neighbor for another 15 years. Early mediation may preserve the relationship.

    • Early Mediation keeps your skeletons hidden. Because Early Mediation moves quickly, the party’s focus remains on the main points. There may not be time to hunt for skeletons or other issues that distract the parties from the real concerns.

    • Early Mediation is less expensive. Early mediation shortens and focuses the discovery process.

    • Early Mediation takes less time. Depending on an appeal, litigation may take up to 36 months or more. If properly managed, early mediation can be done in several months.

    • Early Mediation leaves stones unturned. An attorney is obligated to leave no stone unturned, but early mediation will do just that. The risk of not turning every stone must be weighed in exchange for less emotional turmoil, saved time, money and relationships. In most litigation, only a small percentage of the stones turned provide meaningful information, the rest do not.

    • Early Mediation is cost effective. Is there a risk of missing something by not doing all the discovery possible? Sure there is, but is it worth the cost and misery? Early mediation keeps the cost of discovery under control by limiting pretrial discovery. In other words, the other side cannot force you to spend money where you don’t want to.

  2. Is there Insurance Coverage?. Determine if there might be insurance coverage. If there is, make the claim. Insurance may assign counsel. Make sure that if your client wants early mediation, that you pass it onto assigned counsel or the carrier.

  3. Check List - Opposing Counsel. If the case is a candidate for early mediation, broach the idea early with opposing counsel. Be prepared for a lengthy conversation because the concept may be new to them and some discussion will be necessary. Because it is relatively new and different from past practices, it is only human nature to be skeptical about its possibilities. If possible, recommend a mediator at that first conversation, it will help the process move forward.

  4. Reduce Discovery. For the benefits of early mediation to be realized, there must be an agreement for a reduced and foreshortened discovery schedule.

  5. Select a Mediator. A successful early mediation requires the selection of a mediator as soon as possible in the process. Find a mediator that is not just an attorney, but someone that has real world experience in the nature of the dispute.

  6. Call the Mediator. If the parties are having a hard time agreeing to a foreshortened discovery plan, involve the mediator. The mediator will have some experience with the minimum discovery necessary to mediate. A few hours spent here to organize and move forward with an agreed plan saves significant time later. The mediator does not represent anyone, so contacting the mediator directly is not a violation of any ethics rules.

  7. Share Your Claim. Prepare an outline of the issues in dispute, and the legal basis for liability and damages and share it with the opposing party along with it supporting documentation. In most cases, this can be done in the first 30 to 60 days. Be complete, this is not the time to hold something back.

  8. Set a discovery cutoff or create a case management schedule. Do you really need more than 60 days of discovery?

  9. Pick a Date. There is no reason why early mediation cannot start within 120 days with most cases.

  10. Don’t be a moving target. Nothing will end mediation more quickly than a claim or change in the damage calculation at the last minute.

Early Mediation is a concept foreign to many attorneys. But, when viewed in the context of drained bank accounts, years of misery, damaged relationships and lost time, early mediation in many cases makes sense.

Knight Dispute Resolution