The benefits of a successful early mediation are obvious: Disputes can be resolved in a private, expeditious and economical fashion. Flexibility is another valued benefit mediation affords counsel—in selecting a neutral, scheduling the time, day and location of the mediation, and tailoring the mediation to address the specific issues involved in the dispute.
Why, then, is early mediation the path least taken—in lieu, oftentimes, of years of contentious litigation that can be debilitating in terms of time, cost and other resources? The answer, in sum, is that one or more of the parties is unable to take the leap of faith required for an early mediation; that is, negotiating in a meaningful fashion absent the knowledge that formal document disclosure and deposition testimony may bring. While the hesitation to engage in early mediation is understandable, the alternative is not necessarily a default to full discovery, but rather, reasonable efforts to design—with the assistance of a knowledgeable and experienced mediator—a protocol for an exchange of information and documentation in a time-controlled environment that will afford the parties the comfort level that they will not be negotiating “blindly” or in a vacuum.
