Early in the Dispute/Martin Rosenfeld, JD

Posted on June 6, 2015


I do not know about statistics regarding when cases seem to settle. Do cases settle mostly after the dispute is 6 months old? One year old? Two years old? The assumption of many is that few cases settle early on because the parties are most optimistic about their chances for success early in the proceedings. Battle fatigue has also not yet set in. Expenses have not yet started to get to a point where a party feels that settlement might be in their interests.

In a mediation, however, the timing is not necessarily a predictor of behavior. Parties enter into a mediation to avoid cost, anguish, stress, etc. Parties in mediations are often highly motivated. They know why they have chosen mediation and what a proper settlement will accomplish for all concerned. The task of the mediator is to explain why civility and dignity are more important than getting an extra “chit” or two. When is the best time to mediate a dispute? The answer I suspect is that anytime the parties are willing to sit down and talk. When the choice is between mediation and litigation, the former will usually be the wisest course. Mediate don’t litigate.