Hat tip to Don Philbin and his wonderful blog, ADRToolbox, on this article about seven habits of highly effective litigators. The original article, published in the New Jersey Law Journal, identifies seven habits of, well, effective litigators. Habit number one? Mediate early. Why? Because an early mediation can mean that positions haven’t hardened and issues can be targeted. If these items aren’t taken care of early, the case can take on “a life of its own,” causing “excessive costs and barriers to constructive settlement.”
I’ve seen this…you wait to get all the depositions, documents, and discovery (Triple-D) and by the time you have all of that, a year or more has passed and the economics of the case make it difficult to settle.
By mediating early, you really are thinking about the client. You are thinking about the client’s financial bottom line and even if you don’t settle that day, the mediator can help the parties prepare an agreement on how to move forward–which depositions are really necessary, what documents need to be exchanged (and does a confidentiality agreement need to be made?) and can we limit the interrogatories to a few, or agree as to the admissibility of certain documents by stipulation?
As I advance more in my mediation career, I’m coming to the conclusion that a case that doesn’t settle at mediation isn’t a loss. It can be a victory–with the right mediator and parties–to take the next steps to have the dispute resolved formally and institutionally.