The question of when to orchestrate mediation has strategic significance and should not be taken lightly. One view proposes early mediation to avoid litigation costs. This viewpoint suggests the parties find their settlement value early and save on discovery costs.

Opponents of early mediation point out that without discovery parties to mediation often under estimate their prospective litigation costs and over value their claims. Realistic goals during mediation are often only achievable after some discovery.

Rather than attempt rationalization between these two opposing views, the better approach is to calibrate your mediation strategy in the context of your objectives. For example, the goal of early mediation may be to obtain information while also limiting mediation costs. Mediation later in the process may involve serious attempts to settle. Alternatively, an early show of preparation and detailed familiarity with the law and facts of the case may trigger meaningful settlement discussions.

This strategy should be established in advance of your first mediation session. Making the right choices concerning when to initiate mediation is a strategy decision that should be calibrated to help you reach your business objectives.