This issue continues our discussion of the timing of mediation—this time, when it should be postponed. To look at our last issue, click here. We would be remiss in not offering the opportunity to click here to look at our updated website.

In our last issue, we discussed the answer to this question, emphasizing the advantages of early mediation: savings in the enormous costs of protracted litigation, preservation of the time of business principals, avoidance of the stress produced by involvement in this process, more likely preservation of existing relationships for the benefit of all. Given those advantages, why would we ever postpone mediation?

Sometimes the circumstances justify and even encourage postponement. The paradigm for postponement might be a typical tort case. Here, a party claims to have been injured by the fault of another party, typically an insured, and the defendant in interest (the insurance company) at the outset probably knows almost nothing about the facts. In such a case, the parties may well need to engage in at least some preliminary investigation before mediation. Often, only the initiation of litigation tells the insurance company that a claim even exists. In that situation, the investigation may include conduct of part of the litigation process—such as some depositions of the key parties and witnesses—so each party can gauge the likelihood of success and the range of recovery. That background can be of great value in the process of seeking a settlement that makes sense to all. Thus, postponing mediation until the parties have some degree of education about the case can be the correct approach.

At times, the level of emotion and hostility, not to mention the absolute belief in the “rightness” of one’s case (on one or both sides), may suggest that the possibility of settlement is remote. Why, one might say, would you mediate if you could never get to a resolution; isn’t it just a waste of time? Sometimes this view may be correct; the parties may need to experience some of the cost, burden and stress of litigation—and see more clearly the risk of an unfavorable outcome—before they are prepared to settle to end it. Mediation cannot be successful if the parties are not prepared to listen in good faith to the other side with an open mind. An experienced mediator will tell you, however, that the attitude of the principals can undergo a radical transformation when everyone is in the same room with a mediator. The expression of emotions and positions to the other side, in the presence of both party and lawyer, with the input of a mediator, can often defuse some of the overt hostility and calm the emotions. That expression can also better educate all sides on not only the cost of litigation, but also on the risk of an unfavorable outcome. That process often permits people to make the kind of rational decisions that lead to settlement where before that experience one or both sides would have believed that impossible. If the parties know enough about the dispute to be able to understand in general the risks of an unfavorable outcome, they and their counsel should be considering mediation as a tool for settling their dispute.

At risk of being repetitive, let’s also remind you of something we said in our last issue about early mediation: it can be worthwhile even when it doesn’t result in an immediate settlement. It often furnishes information to a party that it could not otherwise obtain easily, if at all. Mediation provides a chance for both parties to express their opinions of the dispute, the facts, and, often, the underlying emotions, in a confidential and private manner, giving them the opportunity to speak unguardedly. That process typically educates the parties in a very efficient manner about the nature of the dispute, what the real issues are, including critical emotional factors, and what the risks and costs are likely to be. That education can often facilitate a later settlement, within or outside the mediation process.

And we would be remiss if we didn’t repeat ourselves again—earlier is always better than later. Every dispute process has its own momentum, and the momentum is typically to escalate rather than settle. In many cases, much of the benefit of mediation—the ability to preserve relationships, the ability to save the costs and stress of litigation—are lost by waiting too long to embark on the mediation process.

Your reporter and the Illinois chapter of the Association of Attorney-Mediators have been active on the educational front. Our chapter was invited to make a continuing legal education presentation to the ADR Committee of the Chicago Bar Association in April, and the response suggested that it was a resounding success. As part of that program, your reporter, along with chapter President Mike Leech, made a presentation on “No Caucus Mediation of a Family Business Dispute,” a model that has proven particularly effective for resolving partner/shareholder conflicts, especially in the family business context. We have been invited to make other presentations on this subject in other venues. If any of our readers would like a presentation for their firm or group on this or any other mediation-related subject (with Illinois CLE credit where appropriate), feel free to contact us.

Family, baseball and World Cup have filled our summer.

We spent a long weekend with children, grandchild and 91-year old Mom, celebrating your reporter’s birthday (number not disclosed) and grandchild’s first. A great family time. The little guy is so much fun—and a great baseball fan, even at this young age. Our birthday party favors were vuvuzelas—those infernal horns that sounded like bees buzzing during the World Cup for anyone who didn’t watch.

Our over-55 (age) Marlins have fought valiantly and had some close ones, but have yet to come away with a victory. Our over-60 Jaxx have won about as many as they have lost, so we have experienced both the thrill of victory and the agony of defeat. We are already looking forward to post-season play!