There’s an old saying in US politics – ‘vote early and often’. According to research, this also pertains to mediation. Mediating early may seem counterintuitive in a field where settlements are often reached on the eve of trial, but there’s good reason to consider doing so. Research demonstrates that early mediation reduces litigation costs and is more likely to result in settlement. Those who regularly implement early dispute resolution also cite reduced exposure, greater control over the dispute and better relationships with their counterparts as reasons for doing so.

Although mediation is commonly used to resolve commercial disputes, the tendency is to use it during the later stages of litigation. Fear of being seen as weak, concern about negotiating without having conducted considerable discovery, and a general propensity to continue doing things as they have always been done keep counsel from adopting early mediation. Despite the reluctance of counsel to mediate early, research shows that doing so enhances mediation’s desired benefits.

Three empirical studies, which looked at mediation that took place during the litigation process rather than before filing, all found that mediating early is more likely to result in settlement than waiting to mediate later in the litigation process. A study of civil cases in Ohio, US, found that cases that were mediated sooner after filing were more likely to settle, and that those cases that mediated late in the process were less likely to settle. Another study of an early mediation pilot programme in California found that those cases that went through the pilot programme were 30 percent more likely to settle than those cases that participated in mediation later in the litigation process.

Apr-Jun 2016 issue

Resolution Systems Institute