Mediation 101: When to bring up mediation

Posted by: David Fitzsimons Category: Mediation, Mediation 101 Comments: 0

Q: When is the best time to bring up mediation as an option, with my client, or with the other side?

A: The Rules of Professional Conduct under the heading Counselor include Rule 2.1 Advisor “In representing a client, a lawyer shall exercise independent professional judgment and render candid advice….” At comment 5 to that Rule, we find the explanation “…when a matter is likely to involve litigation, it may be necessary under Rule 1.4 [Communication] to inform the client of forms of dispute resolution that might constitute reasonable alternatives to litigation.”

So for many clients with a new dispute, the intake interview might well be the first time. As for the opposition, well we all have our views on how the “first overture” is sometimes viewed, but more frequently of late, sophisticated lawyers wielding a full array of options for their client, are perfectly comfortable proposing mediation without telegraphing “weakness”.

In many instances, parties participating in mediation, either intentionally, or because of assignment by a court, make very positive progress towards ordering and streamlining the manner of proceeding with a dispute, short of actual settlement. Also; the release of tension often inherent in a well-guided mediation process will result in global resolution in the near future, once some time and opportunity for mature deliberation free of passion has occurred.

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