In game theory, a dominant strategy is the course of action which results in the best outcome for one party regardless of what the other party does. In mediation, all interested parties come together with a neutral third person who helps facilitate a discussion as the parties work towards negotiating a settlement. Mediation presents an opportunity for parties to save the time and money they would spend litigating their dispute while affording them a measure of control and certainty over the outcome. Mediation also conserves judicial resources, and many court rules now require mediation of claims. Nevertheless, the timing of mediation may significantly impact your ability to obtain the best possible outcome.

1. Time Is Money.
In a legal dispute, the clock is always ticking and costs go up for everyone involved with each tick of the clock. The higher your attorney’s fees and costs, the less room you have to compromise and the less money you will save by doing so. Bear in mind that attorney’s fees are rarely recovered at mediation. This means your legal fees come straight out of pocket. At that rate, you have a limited window of opportunity before the other party decides he/she is better off rolling the dice at trial than settling at mediation.

2. How To Burn Bridges 101: File A Lawsuit.
We tell our clients all the time to carefully consider the relational consequences before filing a lawsuit. At best, filing a lawsuit will negatively affect the relationship between you and the other party. At worst, a lawsuit may irrevocably sever the relationship. Moreover, these detrimental effects worsen the farther you get into the adversarial process, which increases animosity and exacerbates differences between the parties over time. In today’s legal climate, mediating before a lawsuit has been filed can be particularly advantageous if you hope to salvage the relationship or would at least prefer to part amicably.

3. Get Creative.
Mediating your dispute early on maximizes space for creative solutions. While litigation is essentially a zero sum scenario in which whatever one side gains comes at the expense of the other, mediation doesn’t have to work that way, particularly where the parties mediate before incurring significant legal expenses and entrench themselves into positions which limit their options. At an early mediation, parties have more leeway to think collaboratively and find a solution which serves both of their purposes. Whether acting as a mediator or your attorney, EM&M adds value to the mediation process by, among other things, helping you to explore creative solutions/possibilities. The earlier the mediation, the greater the potential for EL&M to add value through innovation.

4. Listen, Watch, and Learn.
What if the other party doesn’t settle or refuses to make reasonable efforts to do so? Even where the other party isn’t playing ball, early mediation still offers significant advantages. For one thing, mediation can help you and your attorney gain a more complete understanding of the facts, as well as the claims and arguments the other party will advance down the road. Utilizing mediation as an investigative tool early in the process may give you a head start and could also save you time, energy, and expense in discovery. Moreover, mediation presents an opportunity to delve beneath the other party’s legal positions in order to ascertain their underlying interests. Whether as your attorney or an effective mediator, EL&M will work at mediation to identify the other party’s motives by, for instance, crafting proposals calculated to reveal what the other party values most or challenging the other party to make a counterproposal that addresses the interests you have identified. Gaining access to all of this information early on in your case may provide a strategic advantage in litigation and could also plant a seed for further negotiation and eventual settlement, even if the other party fails to make a good faith effort to resolve the dispute at mediation.