Most lawyers are at least aware of mediation as an alternative to extended litigation. But if you don’t regularly participate in mediation, you might wonder when it’s the right time to broach the subject with your client and opposing counsel. Here are some tips, based on my experience as both a litigator and mediator.
1. Your client is worried about the cost of litigation.
Clients who originally liked the idea of “fighting it out in court” often lose enthusiasm as the bills add up — attorney fees, filing and service fees, expert fees, court reporter fees, document charges, etc. Your client’s share of a mediator’s fee is probably about what it would cost to have you do another few hours of discovery or a simple motion. And costs usually escalate exponentially as you get closer to trial. Your client’s questions about cost control give you a good opening to discuss the possibility of mediation.
2. Your client is complaining about how long litigation is taking.
Only lawyers think there’s anything normal about a civil case taking two, three, or more years to get to trial. Whether plaintiffs or defendants, most people hate having a lawsuit hanging over their heads. Few can easily cope with the years of financial and emotional insecurity involved in litigation. Many clients facing a distant trial date are relieved to learn there are alternatives. Mediation can usually be set up within weeks and may resolve the case in hours. Even if the case isn’t settled at mediation, the parties often make progress that allows the case to still be settled before trial.
3. It’s the law (sometimes).
A number of statutes, court rules, and contracts encourage or require parties to mediate before going to trial. The courts don’t necessarily take the initiative to enforce these provisions, however. If you have a case you believe would benefit from mediation, see whether you can encourage or compel mediation through the court. For example, the Washington Trust and Estate Dispute Resolution Act (TEDRA) provides for a party to steer a matter into mediation by filing and serving a notice of mediation under RCW 11.96A.300. In some counties, court rules encourage or require mediation before a case will go to trial. For example, King County Local Rule LCR 16(b) requires parties to participate in an alternative dispute resolution process no later than 28 days before the scheduled trial. Mediation is often used to satisfy this requirement.
4. The opposing side mentions it.
Although I primarily represent plaintiffs in litigation, I have found that in recent years it is most often the defense that suggests mediation, perhaps because of the increasing sensitivity to litigation costs. In any event, I usually consider it a good sign when the opponent suggests mediation, and I’m glad to have that opportunity to discuss the possibility with my client.
5. Something has changed in the case.
The opportunity to mediate often comes in response to a change in the posture of a case. A ruling on a substantive motion, a particularly good or poor performance by a witness at deposition, or a change in a party’s economic or health status all may open the door to suggesting mediation. Big changes in a case may cause both parties to re-evaluate their expectations, which is a good time for a mediator to step in.