The parties agree to try mediation early in the life of a conflict. Yay! Early mediation has many benefits, such as the ability to preserve relationships, the reduction of costs, and the increased likelihood of creative outcomes given less entrenchment on the part of the parties. Early mediation can be used in any type of dispute – business, employment, family, tort, etc. Despite its benefits, mediators should be mindful of ethical pitfalls more likely to occur during early mediation.
Early dispute resolution may occur with little or no information sharing or discovery. In some cases, the parties have roughly equal access to information, but other cases may have large informational disparities, particularly in cases between individuals and organizations. During pre-mediation preparation with the parties and counsel, the mediator could discuss what information the parties agree to share prior to or at the mediation so all parties can make informed decisions.
Mediators should be watchful for a party’s hesitation to settle due to informational gaps. Parties may say things such as: “I’m not sure if that’s really how it was” or “Those numbers don’t sound right to me,” or “I don’t remember that email going out.”
When an informational gap exists, the mediator should try to promote information sharing as best as possible. Often, the mediator can facilitate information exchange including document sharing. This step is important because parties have autonomy to make informed decisions. The Model Standards of Conduct for Mediators require that parties make “free and informed” choices.
Although unusual, mediators sometimes determine that a proposed agreement is unconscionable or illegal. Mediators cannot facilitate parties agreeing to such contracts. Mediator ethics prohibit mediators from creating or perpetuating material misrepresentations between parties, which may occur in caucused-based mediations when a party refuses necessary information sharing.
In situations where the informational disparity might lead to such agreements, the proper course of action is for the mediator to refer the parties to outside sources, such as counsel. In addition, mediators can terminate the session.
Mediators who work in early dispute resolution may need additional competencies, particularly in interest-based mediation. Early mediation is more likely to involve interest-based bargaining and a focus on creative decision-making. These cases may be less likely to involve the “trashing, bashing, and hashing” commonplace in mediating litigated cases.
In conclusion, mediators must provide a quality process whether the parties arrive at the dispute early or on the eve of trial. Mediators should be mindful of how time can change information, power dynamics, and potential solutions. That said, early in the life of a dispute is a great time to mediate!
