The Earlier The Mediation, The Better

The rules implementing statewide mediated settlement conferences in North Carolina generally require litigants to attend a pre-trial mediated settlement conference and typically a case management order establishes a deadline for completion of the conference.  Parties are free to decide how close to the deadline (or early) that the conference will be scheduled.

There is a lack of consensus among lawyers about the correct time to schedule the mediation.  According to recent studies, delaying the mediation even for a short time decreases the likelihood of settlement.  There are many factors at work, but generally the investment in the litigation and the level of contentiousness between the parties grows as the case goes forward.

In a previous article, I reviewed the use of the pre-litigation mediation tool.  Whether required by contractual clauses or proposed by lawyers who know their clients can benefit from trying to resolve disputes before they incur the time, expense, emotion and distraction of litigation, early mediations are becoming much more of a “norm” than ever before.  Mediation is a reality in most civil superior court cases, so is it worth taking a shot to resolve a dispute before the parties dig deeper into their pockets and positions?

The obvious advantages to early mediation include the relatively small amount of time, fees and costs invested, with the potential of a prompt resolution.  Pre-litigation mediation has the advantage of the confidential nature of the proceedings as opposed to the public record of court proceedings.  The parties may not want to air their dirty laundry, or may not want their competitors, customers or employees to find out about the issues.

Even early in litigation, studies suggest that cases referred to mediation at an earlier stage are more likely to be settled than the cases that advanced to the pre-trial stage.  Preparation for an early mediation is key, as the parties have typically not conducted much discovery.  Lawyers may need to flesh out the key facts and provide evidence or documents and legal precedent for the mediation and should be prepared to share their positions.  A bonus is that, if the pre-litigation or early mediation is unsuccessful, the lawyers are better prepared to draft a complaint or answer without extensive additional investigation, or in some circumstances, the mediator can adjourn the conference until the necessary questions are answered in the case.

Paul T. Flick is a NCDRC Certified Superior Court Mediator at Flick Dispute Resolution in Raleigh, North Carolina


About Miller Monroe & Plyler

At Miller Monroe & Plyler, our attorneys have helped many clients resolve their disputes throughout alternative dispute resolution before a lawsuit is ever filed.  We recommend engaging experienced counsel if you are involved a dispute that may lead to litigation, so that you can effectively navigate the process.  Contact us today for a consultation, or click here to learn more about our practice areas.

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