One of the last things any general counsel wants is a notice of a lawsuit against their company. Many thoughts enter your mind, including what’s the lawsuit about? Are we liable? Who are the company’s witnesses? How much will this distract leadership and employees? What are our defenses—and what will this cost to defend? 

Once defense counsel is chosen, a decision needs to be made about whether the company will dig in its heels or attempt to mediate the dispute early in the proceedings.

The decision isn’t simple. Here are four factors to weigh when deciding whether to mediate sooner or later.

1. Witness Availability and Turnover Risk

First, what are the chances all the same employees will be with the company when the case goes to trial? This is an important consideration, especially if you are in a high-turnover industry. Even for a deposition, it is often preferable to have the witness testify in person. But will that employee still be there when the trial starts or even be willing to testify?

2. Employee Morale and Workplace Disruption

Pending litigation can weigh heavily on employees involved in the matter. For example, suppose an employee innocently shares a subscription-based article, potentially violating copyright laws in doing so. Will that employee be focused on their job given the potential liability hanging over their employer because of their action? Resolving the case with prompt mediation will lift the burden of having to testify and allow them focus on their job.

3. Managing Publicity and Reputation

Public lawsuits can attract unwanted attention. Is it better to try to resolve the matter and remove the matter from the public eye sooner rather than later? It may be worth drafting a nondisclosure and nondisparagement agreement if mediation is undertaken sooner in the proceedings.

4. Assessing Damages Before Deciding

Sometimes, waiting makes sense—particularly if the extent of damages is unclear early on. My very first mediation as general counsel dealt with a carbon monoxide incident at one of our hotels. We decided to learn the extent of the injuries to the plaintiffs before conducting a multiparty mediation, which ended in a successful resolution for everyone concerned.

There is no easy answer regarding exactly when to mediate a case, but trying mediation at some point will hopefully bring closure to the matter before a judge or jury decides the case for you.

Disclaimer: The content is intended for general informational purposes only and should not be construed as legal advice. If you require legal or professional advice, please contact an attorney.