Wise people say...

Wise people say that the best time to mediate is right at the start of a dispute, or before it even really crystallises


This is obviously good advice

In theory

But sometimes life just doesn’t work that way.

You can’t easily approach an adversary and invite them to mediate a dispute straight off the bat:

They might not realise that the thing they did caused any dispute at all, they did nothing wrong

Or they might see an immediate suggestion to mediate as a clue that you’re not serious about arguing, take advantage

Or they might see it like an invitation to something that they just don’t want to do, ignore it

Sometimes a dispute has to go through the motions first

Things have to be knocked down before they can be rebuilt

You have to have that knock around, put your best cases, consider the outcomes, spend some money, flush out what you’re up against if you can’t reach an easy resolution, what a judge might say

You have to get their attention

Get into the serious legal matters with your trusted adviser, hear that you’ve done all you can do to solidify your position, then work on moving forward, both slightly bruised, but mostly vented

That’s when you benefit from the space to talk freely, bounce ideas, start something new from scratch

It shouldn’t have to be that way, but life is never 100% efficient

The idea that mediation is a true alternative right from the very start is wishful thinking. Until you’ve aired the grievance at least under the protocol and set out your stall, what you want from the law and why, you won’t be able to forge a new relationship

Get those first blows in, front load the case so the risk is as clear as it can be, and then, all of the terrain is visible to be mapped and traversed

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