There is no “right” time to start the process. It depends on the nature of the case, the quality of the information that is available early in the case, the temperament of the other parties and their counsel, and the willingness and ability of your client to go forward if the case does not settle. There are probably dozens of other factors as well. However, since we know that less than 3% of employment cases actually go to trial, it is never too early to start considering a resolution of the dispute. From the moment a client walks into your office, regardless of which side you represent, you should be thinking about how you can resolve the situation short of trial.
You owe it to your clients to be as competent and as comfortable with respect to settlement techniques as you are in trial advocacy. Resolving your client’s dispute is the best way to make life better for your client. Although you may want the “experience” of going to trial, it is a rare client who relishes that idea. For most, getting the case resolved as soon as possible is the goal. It is not a sign of weakness to talk with opposing counsel about settling the case, no matter which side you represent. Colorado attorneys are ethically required to advise clients of alternatives to litigation such as mediation. Rule 2.1 of the Colorado Rules of Professional Conduct states in pertinent part: “In a matter involving or expected to involve litigation, a lawyer should advise the client of alternative forms of dispute resolution that might reasonably be pursued to attempt to resolve the legal dispute or to reach the legal objective sought.”
Whether early “mediation” will be successful depends on many factors. And there are certainly cases where the first effort to resolve a case was ineffective because it was started too early. But in most cases, the earlier you start exploring options for settlement the better. You can always wait to get more information – more depositions, more documents, more experts. But the question you should continue to ask is to what extent the additional information will assist in the negotiations, and to what extent the cost of obtaining additional information will negatively impact the negotiations.
