With new case management deadlines in circuit court, early mediation will prove useful because it provides the parties and counsel with information even if the case does not settle. Judges will likely order mediation earlier in the life of the case. Historically, courts set the mediation deadline at the end of the discovery period or on the eve of trial. There seems to be little benefit in waiting to mediate after discovery is over and the litigation budget is exhausted. Early mediation is good public policy. Sunk costs are an impediment to resolution. Unresolved conflict is bad for one’s mental health and finances. The public’s perception of the legal system is enhanced by early resolution. Access to justice can be had by a desired settlement.
New case management deadlines don’t allow much latitude in terms of case prosecution. Opting out of traditional litigation might become more common. A principled decision-making process that is quick and at a cost commensurate with the amount in controversy should have some appeal. Neutral-driven dispute resolution as a species of private judging can serve that end. For more on NDR proceedings that provide for inexpensive and prompt dispute resolution, view this link to my article on NDR proceedings.
The case management requirements in the court system are going to require more work in a shorter period of time. Litigators and lawyers generally already report high levels of unhappiness and dissatisfaction with their work, and the new case management deadlines will not help. One of the unintended consequences of accelerated case management will be the opportunity for less experienced lawyers to get into the action. If senior counsel is being pulled in different directions to meet shorter deadlines, they are more likely to delegate projects, depositions, and hearings. So, the incremental benefit is that younger lawyers may obtain more meaningful real-world experience sooner.
For more on mediation tactics and strategy, please visit the free CLE video library at henryadr.com.