Is It Ever Too Late for Mediation?/Martin Rosenfeld, JD

Posted on November 20, 2016


A recent “Hagar the Horrible” cartoon strip by Chris Browne, shows the enemy within striking distance of Hagar and his aide. Hagar turns to his army of one and states; “I suppose it’s too late to request a mediator.”  But is it ever too late for mediation in a matter that has not been adjudicated? In the real world, the answer is clearly “no”. Judges will often refer cases to mediation even if they are on the cusp of a trial.

Mediation can always fulfill a positive function. Mediation can lead to resolutions a good portion of the time. Even when they do not, the parties have been brought up to speed in seeing the position held by the opposing side. Mediation often leads to a decrease in hostility and confrontation. Mediation also leads to  improved communication between the parties. At times, mediation can propose new and untried ways of resolving the issues at hand through e.g. arbitration or other alternatives to legal confrontation. So while Hagar may have waited a bit too long for his chance of mediation on the battlefield, in most cases mediation is a good option for any time or any condition. It is better to try mediation too early rather than too late. However, it is better to try mediation than to forego its potentially salutary effects.

Mediate don’t litigate.