Why Early Mediations Fail and How to Maximize Their Chances for Success

Many lawyers and litigants have the misconception that the parties do not have enough information to settle early in the litigation (or pre-litigation) and therefore consider mediation only on the eve of summary judgment or trial. As a former commercial litigator, I once shared the misguided idea that for many cases, some amount of litigation and expense was necessary before the parties could settle.

As a mediator, I, like many others, believe early mediation can be beneficial to parties and can result in similar negotiated settlements to those reached much later in litigation while saving the parties substantial time and money.

So, why do some early mediations succeed and others don’t? And what steps can negotiators take to maximize the chances of early resolution?

When Mediation May Occur Too Soon

In most cases, if the parties want and are ready to settle, they can do so at any stage in the dispute, and the agreements reached likely will not differ much regardless of the timing of the negotiations.

However, there are some cases where early mediation is unlikely to result in a settlement.

Emotions can impede settlement in all types of cases, including commercial disputes. One or more of the parties may not be ready to settle, as they may be too emotionally charged to think rationally about their chances of success. They may want to be heard and have their day in court. They may mistakenly believe that a trial is their only forum. Eventually, after emotions dissipate, the parties will start to realize that their day in court may be years away and, in the interim, litigation is filled with tedious discovery, motion practice and the growing costs affiliated with both—not to mention, the increasing risk and uncertainty that comes with leaving the outcome in the hands of a judge or jury.

Similarly, in some commercial cases where there are large dollar amounts at stake and case law is split or undeveloped, the parties may need some amount of litigation to see how the deck starts to stack—either for or against them.

There are also disputes involving inequities in power and/or money where one litigant may want to hold off on negotiations because they think they can outspend and outlast their adversary and obtain a more favorable settlement in the future.

For these cases, early mediation may not lead to settlement. 

But for those who are ready to settle, what steps can they take early in the dispute to maximize their chances of reaching a negotiated outcome?

3 Tips to Maximize Settlement in Early Mediations

Contrary to popular belief, parties do not need to litigate through the end of discovery to reach an informed negotiated agreement. Instead, they need to thoroughly prepare, collaborate and not rush the mediation process.

1. Be prepared and conduct a thorough evaluation of the case.

In the wise words of Benjamin Franklin: “By failing to prepare, you are preparing to fail.” Thorough preparation is critical before any mediation. This entails a detailed cost-benefit analysis that considers the expense of litigation, the benefits of settling at different points in time and an economic evaluation of the strengths and weaknesses of the case.

To make mediations productive, lawyers must educate themselves. They should know the relevant case law, understand their client’s factual record and map out the case strategy, including how the timing of trial may impact their client and the costs of the litigation.

They must then prepare an economic analysis to determine a reasonable range of settlement values. They should look at each stage of the litigation and each legal issue and identify where the client may face risk and how that risk may economically change the outcome. They should then calculate the client’s best and worst cases at trial and the probabilities of each of those occurring. Mediators often tell attorneys to know your BATNA—best alternative to a negotiated agreement—but they also need to know the likelihood of that happening and translate that probability into an economic value so that they can evaluate proposals. For example, if the best outcome at trial is $1 million but there is only a 30% chance of winning in five years and it will cost you $200,000 in legal fees, an $800,000 settlement today may not be a reasonably obtainable outcome. 

Generally, the information necessary for the parties to determine what constitutes an acceptable resolution is just as available at the outset of the case as it is later in the litigation. Unless the case involves a novel area of law, current legal precedent is what you will rely on throughout the litigation, and it similarly provides you with a sufficient basis to economically evaluate your chances of success at the outset of a dispute. While there is always some uncertainty, you can factor that into the economics.

In addition, lawyers must prepare their clients. Early in the dispute, a party may be willing to walk away from a reasonable settlement because they think they can get a better deal later in the litigation. Accordingly, lawyers must help their clients understand the case valuation. Also, it is a mistake not to discuss with your client the financial and emotional toll that litigation and trial can take, not to mention the investment of time and the procedural stages ahead of them. It is important for counsel to talk to clients about how most cases do not go to verdict; they settle at some point, typically after significant time and expense. Mediation provides the parties a chance to eliminate risk and achieve certainty. There’s an economic value to that that can and should be calculated before mediation.

2. Collaborate with your adversary and exchange information necessary to value the case.

Parties often mistakenly believe they cannot consider settlement before the end of fact discovery. Only occasionally, however, does discovery reveal a smoking gun that changes the trajectory of a case. If parties are serious about early resolution, they should consider collaborating and exchanging those documents or information they think will affect the outcome of the case. While many lawyers want to hold their cards close to their vest—and there may be strategic reasons for doing so—they should weigh that strategy against the benefits of an early resolution for their client. If there is something that impacts the value of the case, without parties being on an equal playing field, it will be difficult for the parties to reach a resolution because they will be inherently evaluating—and economically valuing—the case very differently. Some limited information exchange can make the difference between a mediation that results in settlement and one that ends in impasse.

3. Do not rush the mediation process; remain committed to resolution.

“Patience is bitter, but its fruit is sweet.” —Jean-Jacques Rousseau

Rushing into exchanging offers and demands may impede negotiations. Even when lawyers adequately prepare the client for mediation, a client may need to move through the stages of the mediation at a slower pace than their lawyer. The client may not be as familiar with litigation and need more time to fully digest the discussions concerning legal merits and risks and how that translates into a particular outcome. Similarly, if the dispute is highly personal or emotional for one or more parties (e.g., employment cases), they may need an opportunity to tell their story and work through their emotions. For these individuals, it may take time for them to realize and accept that the outcome they had expected pre-mediation may not be obtainable or may take years to achieve.

If lawyers rush into trading numbers, the parties will likely find themselves taking two steps forward and then four steps backward to revisit issues that they haven’t finished processing. 

In the infamous words of Albert Einstein: “Where there’s a will, there’s a way.” Before investing significant time and money in litigation, if the parties are ready to settle, in many cases, they have all the information they need to do so. They simply need to commit themselves to doing the work, be collaborative negotiators and remain patient until they reach a deal.

A version of this article was previously published in the ABA Dispute Resolution August 2022 Just Resolutions Newsletter.