The Window: When You Mediate Matters

Timing can make or break a mediation. Ask a litigator when to mediate and you may get one of two answers: “as early as possible” or “after discovery.” Both carry risks.

Mediating too early is a common mistake. When the parties don’t have a good understanding of the facts and issues involved, it’s difficult to know the true strengths (and weaknesses) of their case. Plaintiffs may overvalue claims built on optimism; defendants may dismiss meritorious ones as nuisance suits. Without a realistic assessment, settlement talks become guesswork. The parties can feel pressured to accept an agreement they can’t yet justify to themselves or anyone else.

Waiting too long creates the opposite problem: sunk costs. After months or years of litigation, parties have spent significant sums on attorneys, experts, and discovery. That money is gone regardless of outcome but psychologically demands vindication. “We’ve come this far” becomes a reason to continue rather than settle. The rational calculations of what the case will cost and the risk of an adverse result get clouded by the desire to recover what’s already been invested.

The sweet spot lies between these extremes. Mediation works best when the parties are informed enough to evaluate risk honestly but haven’t yet spent a small fortune proving a point. Where that window of opportunity lies will be different in every case. It can usually be found somewhere after targeted discovery but before trial preparation and motion practice consumes the budget.