Mediation Matters: Timing Is Everything

Key takeaways from this article:

1. Court-mandated mediation timing often works because it hits a “sweet spot” where the parties have enough information to talk meaningfully about resolution but haven’t yet spent heavily on litigation.
2. But that timing isn’t always ideal—some cases may benefit from earlier or later mediation depending on legal strategy, the status of discovery, or client-specific concerns.
3. Pre-filing mediation can be especially valuable in cases where parties want to resolve the dispute privately and avoid public court filings.
4. Every case requires a tailored analysis to determine when mediation will be most effective—balancing timing, cost, and client goals.

For more information and analysis, please read the full article below:

In Maine state courts, mandatory mediation is required by the Court’s Standard Scheduling Order to take place between two and four months after the Scheduling Order is issued.  But timing is everything, and so that window might be the best thing for a particular case, or the worst.  Mediation, and negotiation generally, should occur at various points in time according to the needs of a particular case and the associated parties.

In many cases, that two-to-four month window makes practical sense. The pleadings are completed, initial discovery has occurred, and counsel have talked about the case in some detail.  Major discovery efforts, however, have not yet occurred. Thus, the mediation happens at a time when there is a decent level of knowledge about the case, but at a time when the cost savings of avoided litigation for the clients can be substantial.

Maine state courts, however, offer plenty of flexibility on the timing of mediation.  Some cases are just not in the right posture to be mediated only a couple of months after the case has started. There may be a partially dispositive motion that the parties need the court to decide.  One or two key depositions might shed light on the merits of the case that will shift the leverage of the mediation to one side or the other.  In those instances, a mediation that occurs early in the process will cost money but have a low likelihood of resolving the case.

The opposite can also be true. In some cases, an attorney will have familiarity with counsel representing the opposing party and the parties will agree to mediate the case before a complaint is even filed.  The filing of a complaint in court is a major event, and the possibility of resolving the case before a public complaint is filed may be worthwhile to one or both sides of the dispute.  The downside of doing so is that none of the procedural discovery vehicles that the rules of civil procedure offer are available—such as subpoenas, document requests, or depositions.  The parties may nevertheless agree to a formal exchange of information, and often do.  If the case can be resolved before it enters the court process it can be a major benefit to both parties—it may help save costs, remove the possibility of a public dispute, and avoid the stress and anxiety that often accompany court proceedings.

A mediation, regardless of when it occurs, will provide information about the legal and non-legal considerations in the case.  You will know more about the contours of the dispute even after an unsuccessful mediation.  A meditation will only be successful when the client is fully prepared for the mediation, is aware of the process, and is informed with regard to the timing of the proceedings.

When mediation is pursued, it is in lieu of trying to prove a case with a judge, jury, or arbitrator. Therefore, it requires maximum client involvement because the client is ultimately making the voluntary decision to resolve the case in a compromised setting. Most cases settle, and most cases should settle.  Given the massive cost and time required to try a case to conclusion, trials where the parties are given an involuntary outcome should be the exception. Ultimately, however, settlement of a case via mediation requires an engaged client and the right timing for the particular case.