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If there’s one thing wrong with mediation it happens too late. It’s foolish to wait until a month before trial to mediate. The parties have already spent a huge amount of money on discovery. That money could and should have been used to settle the case.

Federal Judges in the Western District of Washington include information in their scheduling order from the American Bar Association that confirms mediations happen far later than they should. Despite these admonitions, many lawyers still resist early mediation.

Primarily they complain that they need more discovery. It’s a completely disingenuous position. Any experienced attorney can size up a case without taking 10 or 15 depositions.

The real motivation is money. Defense attorneys want to push off mediation because it cuts into their billing. (They, of course, work on an hourly basis. Plaintiffs’ attorneys earn their fees only when money’s recovered).

There’s also the issue of who has the upper hand. In the 20th Century, suggesting mediation was seen as a sign of weakness. Some dinosaurs still see it as an admission rather than a smart way to save both parties time and money. In an implicit acknowledgement that the curmudgeons (who never seem to retire either due to lack of outside interests or financial reversals in the stock market) have been holding back the mediation process, the King County Superior Court recently took a bold and long-overdue step into the 21s Century. As reported by the King County Bar Association.

King County Superior Court is expected to begin a pilot program next month aimed at reducing costs in civil cases by encouraging earlier efforts for mediation before trial. During September and October 2010, randomly selected cases that normally would receive an eighteen month schedule will see two new deadlines earlier than usual for attempting mediation. The pilot, undertaken at KCBA’s request, will measure whether earlier mediation results in savings of time and expense for both the parties and the Court.

KCBA expects a clerk’s alert with complete details to be available in the days ahead, which will be posted to KCBA’s website. In the meantime, members can preview an article about the pilot that will appear in September’s Bar Bulletin.

Hopefully this will create a trend and soon all the cases filed in King County will be seriously considered as candidates for early mediation.

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