Knowing when the time is right

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Knowing when to begin mediation can play a significant role in the success – or failure – of negotiations. And understanding when cases are ripe for negotiation comes with experience. South Bend mediator and arbitrator Joseph Simeri said no formula exists for determining when to mediate a case.

“This stuff is really not a science, it’s an art. I can’t tell you what I do or how I do it. I don’t have a perceived game plan, I just try to get a feel for people, and how they feel for me,” he said.

Who, when and why

The type of case plays a role in finding the right time frame for mediation. For example, while employment matters may be settled quickly, in personal injury cases, early mediation may not be appropriate if all the facts are unknown.

Indianapolis attorney and mediator Denise Page, with The Mediation Group, mediates primarily personal injury and wrongful death cases.

“What I see makes a mediation blow up and not settle when it’s too early is that all the relevant medical records haven’t been given to the other side. If the medical causation or the damages – loss of income, loss of inventory in a fire loss – if it’s not documented to the satisfaction of the other party, it’s too early,” she said.

Conversely, resentment and frustration can build over time. When parties wait too long to attempt mediation, they may become less likely to cooperate.

“It’s harder to let go of the notion and maybe entertain they’re not totally right,” Page said.

Anderson solo attorney and family law mediator Marianne Woolbert said that while she has never had a case in which she believes parties attempted to mediate too early, she thinks that in divorce, mediation may be ineffective in reaching an agreement if the value of the couple’s belongings hasn’t been assessed. Otherwise, she said, early mediation works well.

“I’ve had people come to see me that want to try to avoid divorce even before they filed and basically want to mediate their lives,” Woolbert said.

Simeri handles a wide range of cases, and he said early mediation is particularly effective in employment matters, often because a worker who has a complaint about an employer has no legal remedy.

“A lot of times, the employee’s maybe just looking for a good reference, or for the employer to not argue with severance pay,” he said.

Simeri said the Equal Employment Opportunity Commission’s internal mediation program, RESOLVE, has been particularly successful in keeping employee complaints from ending up in litigation. Its external program appears to be effective as well – in 2010, the EEOC’s external mediation program reached a resolution in 73.4 percent of cases.

At early stages, Simeri said, neither the employer nor employee has invested a lot of money and time into defending against or pursuing a complaint, and that makes resolution more likely.

Recognizing the right time

You won’t find a “fundamentals of good timing” course in law school, so experience is the key to knowing when to mediate.

“I didn’t learn any of it in school,” Page said. “Each case is different, too. There may be one case that is perfect for settling early, and then there may be a case where there are so many issues that are going to have to be researched, documented, given over to the experts – you know that case is going to be pending for a couple of years.”

Mediators can help their clients recognize when the time is right, too.

Page said some clients may not realize just how long they may have to wait for a case to go to court. Once they’re aware that they may have to wait up to two years for a court date, they may be more inclined to work out an agreement in mediation.

Early on, when a plaintiff’s attorney working on a contingency fee hasn’t invested extensive work in a case, a settlement will generally allow the plaintiff to recover more money.

“If a party is paying their attorney by the hour, when it’s in the early stages, you can point out to them, ‘You’re going to be spending a lot of money on this case,’” Page said.

Setting the pace

Page said that while she tries to keep the process moving, she also recognizes the importance of letting the parties work out their differences at their own speed.

“There are times when somebody tells me, ‘You’re going too fast,’ so in that case, I slow it down,” she said. “Sometimes it takes the passage of time for people to cool off a little bit – there’s something about that going back-and-forth process that really works.”

Woolbert said that generally, she can discern right away whether the parties aren’t going to come to an agreement. But with experience, she’s also learned that maybe one mediation session just isn’t enough time, and that they may need to meet again another day.

“Once you get into the process, you kind of get a feel – it’ll happen as quickly as the parties want it to happen,” Woolbert said.•


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  1. I have an open CHINS case I failed a urine screen I have since got clean completed IOP classes now in after care passed home inspection my x sister in law has my children I still don't even have unsupervised when I have been clean for over 4 months my x sister wants to keep the lids for good n has my case working with her I just discovered n have proof that at one of my hearing dcs case worker stated in court to the judge that a screen was dirty which caused me not to have unsupervised this was at the beginning two weeks after my initial screen I thought the weed could have still been in my system was upset because they were suppose to check levels n see if it was going down since this was only a few weeks after initial instead they said dirty I recently requested all of my screens from redwood because I take prescriptions that will show up n I was having my doctor look at levels to verify that matched what I was prescripted because dcs case worker accused me of abuseing when I got my screens I found out that screen I took that dcs case worker stated in court to judge that caused me to not get granted unsupervised was actually negative what can I do about this this is a serious issue saying a parent failed a screen in court to judge when they didn't please advise

  2. I have a degree at law, recent MS in regulatory studies. Licensed in KS, admitted b4 S& 7th circuit, but not to Indiana bar due to political correctness. Blacklisted, nearly unemployable due to hostile state action. Big Idea: Headwinds can overcome, esp for those not within the contours of the bell curve, the Lego Movie happiness set forth above. That said, even without the blacklisting for holding ideas unacceptable to the Glorious State, I think the idea presented above that a law degree open many vistas other than being a galley slave to elitist lawyers is pretty much laughable. (Did the law professors of Indiana pay for this to be published?)

  3. Paul Hartman of Burbank, Oh who is helping Sister Fuller with this Con Artist Kevin Bart McCarthy scares Sister Joseph Therese, Patricia Ann Fuller very much that McCarthy will try and hurt Patricia Ann Fuller and Paul Hartman of Burbank, Oh or any member of his family. Sister is very, very scared, (YES, I AM) This McCarthy guy is a real, real CON MAN and crook. I try to totall flatter Kevin Bart McCARTHY to keep him from hurting my best friends in this world which are Carolyn Rose and Paul Hartman. I Live in total fear of this man Kevin Bart McCarthy and try to praise him as a good man to keep us ALL from his bad deeds. This man could easy have some one cause us a very bad disability. You have to PRAISAE in order TO PROTECT yourself. He lies and makes up stories about people and then tries to steal if THEY OWN THRU THE COURTS A SPECIAL DEVOTION TO PROTECT, EX> Our Lady of America DEVOTION. EVERYONE who reads this, PLEASE BE CAREFUL of Kevin Bart McCarthy of Indianapolis, IN My Phone No. IS 419-435-3838.

  4. Joe, you might want to do some reading on the fate of Hoosier whistleblowers before you get your expectations raised up.

  5. I had a hospital and dcs caseworker falsify reports that my child was born with drugs in her system. I filed a complaint with the Indiana department of health....and they found that the hospital falsified drug screens in their investigation. Then I filed a complaint with human health services in Washington DC...dcs drug Testing is unregulated and is indicating false positives...they are currently being investigated by human health services. Then I located an attorney and signed contracts one month ago to sue dcs and Anderson community hospital. Once the suit is filed I am taking out a loan against the suit and paying a law firm to file a writ of mandamus challenging the courts jurisdiction to invoke chins case against me. I also forwarded evidence to a u.s. senator who contacted hhs to push an investigation faster. Once the lawsuit is filed local news stations will be running coverage on the situation. Easy day....people will be losing their jobs soon...and judge pancol...who has attempted to cover up what has happened will also be in trouble. The drug testing is a kids for cash and federal funding situation.