When is the right time to mediate?

Is it too early to mediate? Many cases I mediate don’t have any proceedings pending therefore little time and money has so far been invested in pursuing the claim. The result of that is people are less invested in the litigation process and they’ve got a more open mind about how a settlement will look.

There’s also a psychological factor to consider – the more times people say something, the more they believe they’re right. So there’s as an opportunity to nip the dispute in the bud before people have rehearsed their case too many times.

Is it too late to mediate? It’s never too late. I’ve had cases settle where the trial is only 7-10 days away. Why might that be? Both parties want to save the cost of going to trial or perhaps one client suddenly realises the reality of being a witness and being cross-examined.

I recall for example a large Inheritance Act dispute that settled on the first day of the trial. The judge had decided to spend the day reading the papers. On that day one of the key witnesses appreciates they just couldn’t face a day in the High Court.

This, coupled with a last-minute change of counsel for the other party who took a different view on the strengths and weaknesses of the case, meant there were new factors at play that made the matter ripe for settlement.

Read more about the discussion with Andrew Miller KC at IPOS Mediation here