Business Review

One of the great things about mediation is that case can be mediated at any time before a question is in dispute at any time during the judicial process. The United States Court of Appeals for the Eleventh Circuit even has a mediation program for cases that are appealed. Although an appeal to the federal judiciary does not seem to be the optimal time for mediation, the administrator of this program told me that it was a surprising success.

In many cases, the timing of mediation reflects a tension between limiting litigation costs (better served by mediation at the beginning) and has all the information necessary tables to evaluate the case (often better served by mediation after completion of discovery). If the parties are in a continuing business relationship, for example, they may already have equal access to all relevant information, and that he would welcome an early mediation.

In theory, the optimal timing of mediation is when both parties have enough information to make a thorough and rational evaluation of their case and the likely outcome. This time varies from case to case, but it does not always require that discovery be completed and every last bit of information gathered. If mediation of knowledge can not be held earlier, the parties may be more flexible because there is less “sunk costs” and a settlement will allow additional charges must be avoided.

In some cases, such as confidentiality and speed are desired, the parties may consider to exchange information outside the court supervised process of discovery. In such circumstances, mediation can be used to establish a process for exchanging information and then to resolve the matter.