Before agreeing to mediate early, take a moment to ask a critical question:
Will doing so likely lead to settlement?
Early mediation can be efficient and cost-effective—but only if both sides are prepared to engage meaningfully. Here are some key factors to consider before deciding if the timing is right:
1. Are You Making Assumptions About the Other Side’s Motivation?
It’s easy to misread why the other side wants to mediate early.
If you represent the plaintiff and defense counsel agrees to mediate, you might assume the defense believes it has a weak case and is ready to settle for a high number.
Conversely, if you represent the defense and plaintiff wants to mediate early, you may assume plaintiff’s counsel believes the case is weak and is seeking a quick, low settlement.
But these assumptions can be dead wrong. The other side may have entirely different reasons. Instead of making assumptions, talk with your opposing counsel to see how they are viewing the case. What you learn from that conversation can help you decide whether early mediation is appropriate, and if so, whether exchanging information will result in a more productive mediation.
2. Are You Basing Your Evaluation on Incomplete Information?
Early in litigation, both sides are working from limited facts. Ask yourself: Am I, and is opposing counsel, willing to share the information necessary for meaningful evaluation? If the answer is no, then early mediation may be premature.
3. Are You Holding Back Information Out of Fear of “Free Discovery”?
This is a common—and understandable—concern. No one wants to empower the other side with case-shaping information if the mediation doesn’t result in settlement.
But here’s the reality:
If the information is ultimately discoverable, does it really hurt to share it early?
A simple risk-based analysis with your client can help:
Does your client want an early resolution?
If so, will disclosing facts now materially prejudice your client—or just make them feel uncomfortable?
If the risk of prejudice is non-existent or low: Consider sharing the information strategically.
If there is a greater risk: Ask whether the potential benefit of early disclosure outweighs the potential downside.
Most often, the issue isn’t whether to share information—but how and when you do it. Think about what information the other side would need to understand your client’s perspective. Then plan a phased disclosure depending on how the mediation progresses.
A verbal summary might suffice in some cases.
In others—especially those hinging on documents or key witnesses—documents or witness statements may be necessary.
Avoid waiting until the mediation session to disclose everything. Parties rarely change positions in real time when presented with new information. Consider sharing some information in advance to give the other side time to absorb and evaluate your client’s position, and then provide additional evidence strategically as negotiations unfold.