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My answer to that is always. I think it’s always the best time because the alternative is to never mediate or never seek an alternative to a jury trial. Jury trials are extremely expensive, closely followed by trials to the court. That means that you are vetting every witness, every document in the case. That attorney is spending time preparing and so, really the earlier the better, generally. Now that’s why this answer when is it best to mediate really depends on the case because some, the motions are way too high. And if they’re too high, you’re not going to get to the nub of what the dispute is and be able to put the salve on those wounds that you need to do in order to settle the case.
Sometimes things take a little bit of time and sometimes you need to take some discovery like depositions, sometimes you need to do document request because you may not know all the facts. So is there any one optimal time to mediate a case? Hard to say, but generally, I’ve found that the early we do a mediation the happier the result, usually. Sometimes you might have had a better result if you hang out there but you have to have a tradeoff. Do I spend $10,000.00 more on attorney’s fees fighting this or do we put that money towards attempting to resolve the case. And some cases just aren’t resolvable by mediation and it’s better to know that at a point before you’ve spent tens of thousands of dollars of attorney’s fees.
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Minneapolis Criminal Defense Attorney, James Johnson, talks about conducting ADR and when the best time is to do so.