Perhaps one of the greatest impediments to resolution in mediation is the timing of when the mediation occurs. A mediation that is set to happen too soon, too late, or at the wrong time, can be a real disaster. If the mediation happens before the end of discovery period or prior to certain motions being filed, parties are typically not as motivated to settle. This is usually because parties feel that something might happen in their favor, post mediation. The reality is, no one knows what will happen post mediation and gambling on this premises will usually result in losses.
Unfortunately, the judge may also order the case to mediation too soon and the attorneys may feel that their hands are tied. In these cases, counsel should consider asking for an extended deadline so that the timing can be more favorable. Attorneys are in a great position to educate the court and the judges about mediation and the timing of it. Many judges have not taken any sort of mediation training or seminars and are uninformed about what really happens in a mediation. Attorneys might use this as an opportunity to positively impact not only their case but the court in general.
Consequently, a mediation that happens too late in the process can also be unfavorable. In these cases, parties feel that they have already spent too much money on attorneys and litigation costs to not see the case to the end. They may also be emotionally shut down due to the other side not responding to an offer made a year ago or requesting unnecessary and personal documents. They are simply just “mad” and unable to get past their anger.
Lastly, a mediation that is set at the wrong time is equally unproductive. If one of the parties just had a family tragedy or gone through an extremely stressful event (outside of their case), they are typically not in the best position to focus and negotiate clearly. Sometimes, the stressful event is the subject matter of the litigation itself and they are still very emotionally about it. Perhaps it was a traumatic car accident and they have not had a sufficient amount of time to cool.
Whatever the circumstance, parties and their attorneys should carefully evaluate the scheduling of the mediation to ensure that it is set at the right time. It may be the difference in settling versus not settling their case.