When Do You Mediate?
Whenever one party sees grounds for an argument, a mediator may be able to help.
Settling a Civil Dispute
In a civil dispute, there are certain points at which mediation is most likely to help the case settle:
- As soon as both sides have started to identify the major issues
- Once the march toward litigation has begun, but before you incur signfiicant costs
- If you have prepared a complaint and sent it to the other side to let them know you are serious
- Immediately following the filing of an answer to the complaint
- After initial skirmishes, but before significant discovery
- After discovery but before trial, sometimes on the eve of trial
- After judgment if the parties will consider a structured settlement or a settlement to avoid appeals
You can even use mediation during discovery to resolve disputes about scope and privilege. Sometimes it works then to resolve the whole case, but often the litigants want the factual lay of the land before making a decision about the relative value of settlement and trial. It may make sense to have a mediation that extends over several sessions during the course of a dispute to reduce the cost and delay of impasse and help keep lines of communication open.
Remember, the sooner you settle, the lower the transaction costs of the dispute.
Settling a Divorce or Family Dispute
For couples considering a divorce or separation or who are experiencing ongoing conflict, there are also a few times at which a mediator is most likely to be able to help:
- Some couples consider mediation to see what a divorce or separation would look like, in order to decide whether to stay together
- Once a couple has decided to separate, the mediator can help them through the process, either before or after they have retained lawyers
- After a decree, if there are issues of child custody or support, or if issues arise as to property division or alimony
Starting a New Contractual or Partnership Arrangement
Some mediators will help parties come up with prenuptial agreements. The same process can help with common business arrangements in order to help limit friction down the road:
- When parties are starting a new business
When parties want to enter into a contractual or other business arrangement but are having a difficult time with the negotiation