Having trouble viewing this email? Click here.

Welcome to the launch of The Mediator’s Minute, a mediator’s newsletter. We will periodically share our news and musings on mediation, how it works and how it can be of value to you. We know how busy our readers are, so we will try to keep the newsletter brief. And of course we welcome commentary and feedback, which can only help us improve what we present.

A common question for parties considering mediation is “when should I do it?” The answer, of course, is “it depends.” It depends on a number of factors — the type of dispute, the
relationship of the parties, the potential outcomes available. One factor, though, is universal — earlier is better than later. A major advantage of mediation is the ability to save much of the fees and costs of the litigation process. Another advantage is the savings of the time of the
principals of the disputing parties that can usually be better spent in more productive ways
than fighting the good fight; the drain of time and resources attendant to litigation can be burdensome and immensely stressful. In these respects, the earlier the mediation, the greater the benefits.

That said, other circumstances must be weighed. One of the determining factors in proper timing of a mediation is the relationship between the parties. If the relationship is long-standing and at least at one time close—business partners or family members, for example—the parties might be served best by mediation at the earliest possible time. The parties know each other and probably know pretty well what is at stake in their dispute; they probably have some idea of a range of outcomes and have some idea of what they want to achieve. In the case of a family, they probably want to resolve the dispute in a way that somehow preserves something of the family relationship. And even if they are not family members, early mediation may have the result of preserving a relationship that otherwise would have been destroyed, often to the advantage of all. Shielding the dispute from public view may also have value.

Mediating the dispute before positions become hardened, bad feelings become worse, and the parties become even more adversarial is probably advantageous to all. Indeed, mediation before a lawsuit is ever filed (assuming that litigation is another option for resolving the conflict) may prove successful at settling the dispute in a mutually satisfactory and business-like manner before hostilities become more intense. In this case, mediation should take place as soon as it is clear that the parties cannot resolve the dispute themselves.

Disputes arising out of relationships other than business partners or family members may also benefit from early mediation. A manufacturer and distributor may find themselves at odds over the performance of one or the other (or both). A landlord and a tenant under a long-term lease may disagree about the services to be provided by the landlord, the computation of the rent, or other performance or financial issues. We can all think of similar examples. In these cases, although the relationship and consequences arising from conflict between the parties may not be as emotional as a conflict between family members or other business partners, still both parties may benefit
from preserving the ability to do business and communicate in a respectful and civilized
manner. Litigation, especially protracted litigation, can only increase the likelihood that that
result will be more difficult, if not impossible to achieve. Early mediation, either early in the litigation process or even before litigation has been initiated, can produce the best result for all parties.

Remember, too, that early mediation, even if not resulting in an immediate settlement, can greatly benefit all parties. It often furnishes information to a party otherwise obtainable only through expensive and time-consuming discovery—or not obtainable at all. Early mediation can focus the issues in a case and may serve as a base for future settlement, either through subsequent mediation or not. The mediation process may be the only opportunity the parties will have to express their opinions of the case and their situation to the other parties in a confidential and private manner, giving them the opportunity to speak unguardedly. That education can prove invaluable in reaching an ultimate settlement.

Next time: Mediation – when to wait.

We want to share with our readers the news of the formation of an Illinois chapter of the Association of Attorney-Mediators, a national organization dedicated to the advancement of mediation as a means of settling disputes and to the improvement of mediation skills through advanced training and other programs. In just 6 short months, our Illinois chapter has grown to 25 members, and is the largest chapter of the Association outside its home state of Texas. Your reporter is the Vice President and Secretary of this chapter. We hope to be a resource for disputing parties, attorneys and the courts in helping resolve disputes by agreement outside the courtroom. We also hope to be an advocate for the mediation process and, through training and education, improve the quality of mediation in Illinois.
Your intrepid reporter played baseball last month in an Arizona tournament for relatively senior citizens. After having been rained out for our annual participation in the old-timers game, we felt it important to get some games in before opening day. Our spring training! In addition to a fun time playing for the Orioles (yes, an odd choice for a Chicagoan, but, like a major league draftee, you go where they send you), we took in a game at beautiful Scottsdale Stadium. Ready for opening day!