If you have decided that mediation offers the best opportunity for resolution of your dispute you need to decide when to mediate. I have three simple questions you should ask to see if the time is ripe:
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Do I/Does my client want to settle?
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Am I ready to negotiate?
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Have negotiations stalled?
Do I/Does my client want to settle?
The answer to this is nearly always yes. However you may want a precedent ruling because the particular conflict is likely to occur repeatedly, for example it is a term of a contract you have with hundreds of customers. You may of course represent a party who wants to drag litigation out until the other side runs out of money – see this earlier post.
Am I ready to negotiate?
The point about mediation is that you do not have to wait until you are ready for trial before you go ahead. You have to be in a position to accept or reject any offer on a commercial basis. The vast majority of litigated matters are resolved long before either side is ready for trial.
Have negotiations stalled?
By this I mean has the last offer been rejected? If it has and no counter offer has been made negotiations have stalled. If this is not the case then continue negotiating; make another offer or phone the other side and ask for their offer. If negotiation has stalled then one option is to dig in and prepare for trial. The alternative is to get round the table with an experienced mediator to see if you can resolve the dispute.
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