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When is the best time to mediate?

When is the best time to mediate?

By Jonathan Kaplan

Dispute Resolution Mediation 


Early mediation can engender a spirit of cooperation between lawyers but sometimes it can be premature. One often hears lawyers say that a matter is “not yet ripe for mediation”. Often a position is adopted to gain more information but there is no absolute correlation between being inundated with information (at significant cost, likely wasted) and a better outcome for the clients. Statutes, contractual requirements and court orders have removed the decision of when to mediate from parties but there are many factors that may impact on early mediation. Early mediation in, for example, a building dispute could prove useless unless expert opinions, reports or defect cost estimates are available to be exchanged. However, early mediation can often engender a spirit of cooperation between lawyers and obviate entrenched and polarised positions, contrary to when significant amounts have been spent on legal fees, making the challenge much greater. Mindful that there’s no guarantee of a good outcome, cutting your losses in mediation even at a late stage, can be a smart decision despite being a hard sell to the client. Going to early mediation provides an opportunity for the mediator to highlight to the parties the inroads on time, elevated stress levels and money that litigation will usurp – and the fact that no one has control of the outcome. It’s interesting to then see the appetite to march on to court dissipate. Even if the matter does not resolve – statistically 80 per cent of mediations do – the consequence of an early mediation can often be the clarification of the issues in dispute and sometimes discovery of surprising information that may promote settlement shortly thereafter.

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