For cases on a litigation track, the road to resolution is far from straightforward. Cases may take up to two years or even more to get to trial. In order to avoid the expense of trials, late-stage mediation was developed decades ago as a tactic to help parties resolve their disputes outside of court. 

However, with late-stage mediations, parties still spend time and money on discovery and pretrial motions before even entertaining thoughts of settlement. As such, parties now are increasingly interested in mediating cases early in order to reduce expenses and keep the emotional toll of litigation in check.

In North Carolina, the mediation rules typically require parties to attend a pretrial mediated settlement conference. Court administrators issue a case management order at the inception of a case to establish a deadline for completion of the conference. 

Although the parties are free to decide when they want to hold the mediation, lawyers tend to disagree as to the best time to schedule a mediation. Some believe that delaying it can decrease the chance of settling, as waiting too long to discuss settlement inevitably means each party has spent time and money, not to mention, dug their heels deeper into their positions. Others, however, believe that mediating too early means prematurely showing their hand and foreclosing the opportunity to glean valuable information through discovery.

Last month, we discussed the tool of pre-litigation mediation and how it can help parties resolve their cases before diving into expensive – and often emotionally taxing – litigation. Here, we discuss the benefits of mediating a case after initiating a lawsuit, but still early in the litigation process.

Why Consider Early Mediation?

There are several reasons why you should consider mediating your case early in a lawsuit. Here are a few.

#1: Preserve your professional relationships.

For parties who regularly work together in a professional capacity, early mediation can help resolve a dispute before they become so polarized that they poison the relationship. Despite its many strengths, the legal system can exacerbate conflict between parties, so the sooner they sit down with a neutral third party, the more likely it is that they will be able to cultivate a civil relationship down the road. Not to mention, because the tone of mediation is (ideally) more collegial than adversarial, parties tend to focus on working together rather than staunchly defending their positions and drawing lines in the sand.

#2: Identify common ground.

The discovery process can be arduous and expensive, and as such, can point litigants toward continued conflict rather than seeking common ground. By mediating a case soon after filing, parties can identify specific points of concurrence and disagreement. This acknowledgment can help them preserve their ability to civilly discuss a matter.

#3: Assess the strengths and weaknesses of your case.

Even if it does not result in a resolution, early mediation can expose the strengths and weaknesses in your position as well as your opponent’s. This is valuable information that can help you make an intelligent decision about how to proceed before you become financially and emotionally invested in continuing the case. Additionally, early mediation presents an opportunity to identify common ground before each party becomes so entrenched in its position that resolution becomes virtually impossible.

#4: Explore a broad range of outcomes.

Discussing resolution early in the pendency of a case allows for a more diverse range of outcomes, including creative ones that parties may not consider once they have invested thousands of dollars – or more – in attorneys’ fees. Inevitably, the more money parties spend on a case, the more proceeding to trial looks like the only viable option. However, at the outset of a case when the spend is still minimal, parties will likely prove more willing to accept smaller settlements or discuss alternative arrangements.

#5. Reduce spending.

Whether successful or not, mediation can help parties save money. If it is successful, they avoid litigation. And even if the mediation does not resolve in a settlement, it can, nonetheless, make continued legal work more expeditious and efficient (and thus less costly): The parties will now have a clearer sense of where they each stand, as well as the strengths and weaknesses of their positions.

#6: Embrace a business-minded approach over a litigious one.

Mediation sets the stage for a more business-like approach to dispute resolution because it requires parties to critically assess their positions – specifically, what basic information they need in order to make an educated decision about settlement. A part of this process is for the parties to examine the costs and risks they will face in taking a case to trial, not just in terms of dollars, but also, their reputation and the inevitable emotional toll of continued litigation.

Contact Our Experienced North Carolina Mediators

Early mediation is a tool that can help parties see their dispute differently. The aid of a neutral third party can help them evaluate a case with a fresh set of eyes, enabling them to make more informed choices about how to proceed.

Nonetheless, thorough preparation is key to a successful early mediation. It takes work, transparency, and some upfront costs. Before coming to the table, you will need to sit down with your lawyer to flesh out key facts, evidence, and arguments. This is a valuable strategy because even if the mediation is unsuccessful, developing a clear sense of your position will help you in crafting a case a strategy for trial, should that become necessary.

The attorneys at Green Mistretta Law are dedicated to delivering positive results for our clients. We take pride in offering the very best legal counsel and working with clients to devise the best strategy for their cases. We regularly serve clients across North Carolina and help them resolve their disputes through DNC certified mediation.

To learn more about the mediation process or to speak with a member of our firm, fill out our contact form, or call our mediation coordinator, Cynda Liebers at (919) 278-7453.

This article does not establish an attorney-client relationship and must not be construed as legal advice.