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Bar Association of San Francisco Member Benefits: Publications

Avoiding Costly Mistakes in Mediation/Part 1
Mediation Timing: Early vs. Too Early


By Nancy Neal Yeend and R. Michael Kasperzak, Jr., Silicon Valley Mediation Group


Editor’s Note: This is the first in a series of three articles that address how attorneys can avoid costly mistakes even before a mediation begins. The series starts with timing, followed by how to select the best, case-appropriate mediator, and concludes with how to effectively prepare.


Every bit of discovery does not need to be completed for a successful mediation. Many times, little or no discovery is necessary—it all depends on the type of case. Mediating to resolve an intractable problem before litigation begins is the best of all possible worlds—a solution is identified and agreed to when it still matters. Mediating pre-suit is the most cost efficient time to settle, and important relationships can be maintained. It can, however, be difficult to persuade another party to enter into a mediation before a lawsuit is filed, which is why a mediation clause should be included in any transaction.

As courts steer cases to mediation earlier and earlier, in an effort to conserve both court and participant resources, some attorneys believe mediation has gone the way of non-binding arbitration and has become “just another hurdle.” Unfortunately, some counsel fear resolving a case before it is fully developed. In most instances, however, there are key points that determine the probable value of a case. If the parties mediate in good faith and utilize the benefits of confidentiality, they may be surprised to get the key disclosure that will enable early resolution.

Once litigation has commenced, determining when to conduct mediation becomes more difficult. Even if the court has ordered mediation prematurely, the process may still produce benefits, for instance: coming to agreement on what discovery is necessary, and when and what information will be exchanged. Clarifying these issues in mediation often saves a lot of time and energy getting documents, and increases the probability that settlement will occur in a second mediation session.

Agreeing to mediate before you are ready, hoping the other side will “cave,” is usually a waste of time and money, and can create animosity and suspicion between the parties. Early mediation as an effort to avoid the cost of discovery only works when the dispute can be solved through non-monetary means and issues of liability and damages are not the driving forces. If liability and damages are driving factors, then it is usually advisable to engage in enough discovery to allow reasonable evaluation of the matter from all perspectives.

Early mediation has many benefits, especially when you select the best, case-appropriate mediator, and effectively prepare yourself and your client before entering the mediation room.


Nancy Neal Yeend has been a civil mediator for 30 years and is a faculty member at the National Judicial College. Michael Kasperzak, a former civil litigator, has over 20 years of mediation experience. Both Nancy and Mike are founding members of Silicon Valley Mediation Group.

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