Courts are crowded and judges have limited hearing time. Trial dockets were full before the pandemic, then got worse, and now we need to clear the backlog. In states like Florida where there is an influx of new residents post-pandemic, state and federal courts have an important role to play in helping parties achieve access to justice quickly. Encouraging early mediation is a simple but meaningful step. Authority rules, attendance requirements, and orders requiring premediation submittals are helpful. But curiously, judges too often ignore a painless way to help reduce the judicial backlog. Courts need to implement early mediation deadlines. Mediation deadlines are too often late in the life of the case. This exists not of necessity but by virtue of unexamined habit and custom. Court-ordered mediation deadlines were established in the 1980’s when mandatory mediation was unproven and new. Those case management or trial orders back then had mediation deadlines on the eve of trial. This was done to placate some who were resistant to mediation or doubted its benefits. Those days are over. The data suggests early resolution is better. Early in the dispute you have lower sunk costs, less litigation-induced animosity, and more flexibility in outcomes. However, in most venues the mediation deadline is several months or a year or more after a suit is filed. This means a large percentage of cases remain on the shelf longer than they should.
Why are courts unwilling to establish early mediation deadlines? No one has offered a cogent explanation. Why not two mediations? Circumstances change during the course of litigation. Litigation budgets are exhausted. Personal and business circumstances eliminate the desire or need for litigation. Courts can do something simple and tweak mediation orders and signal the lawyers and parties to expect any early mediation and second mediation later in the life of the dispute. The first mediation could and should normally be within 90-120 days after joinder of the parties. The second mediation can be at the discretion of the parties but before the end of discovery. Making two mediations the norm in case management orders would be a small but important step in helping our court system manage increasing case-loads.