Why Strategic Early Mediation Matters

By Raymond L. Niblock, Founder & Principal Mediator, Niblock Mediation Services

For most lawyers, HR directors, and insurers, mediation is still viewed as something that occurs after a dispute has matured—after pleadings are filed, discovery is underway, and positions have hardened. In many cases, that timing makes sense. But in others, waiting that long is precisely what makes disputes more expensive, more personal, and harder to resolve.

Large, risk-averse institutions have confronted this problem directly. One of the more instructive examples comes from an unexpected place: the United States Air Force.

What Large Institutions Have Learned About Timing

The Air Force’s mediation program, as reflected in its Mediation Compendium (4th ed.), offers a disciplined, experience-driven approach to early and pre-complaint mediation—not as a reflex, but as a strategic option deployed when timing and circumstances are right. The Compendium explains that early mediation often succeeds because disputes at that stage tend to be: less formal, less polarized, and less driven by sunk costs.

Before parties invest heavily in positional advocacy—through pleadings, discovery, or internal escalation—there is often more room for problem-solving and creative resolution.¹

At the same time, the Air Force is explicit about a concern many lawyers share: parties may hesitate to resolve disputes early if they believe critical facts have not yet emerged or that they lack sufficient information to evaluate risk.²

In other words, early mediation is not mandated simply because it is early. It is encouraged when it is useful.

Early Mediation Does Not Foreclose Later Resolution

One of the most practical insights in the Air Force guidance is its recognition that early mediation failures do not preclude later success. An unsuccessful mediation attempt at an early stage does not waive rights, lock in positions, or prevent mediation from working later once facts have crystallized.³

That point is especially important for lawyers and insurers who worry about “showing their hand too early.” Institutional experience suggests that early mediation can serve as a diagnostic tool—clarifying issues, surfacing misunderstandings, and narrowing disputes—even when it does not immediately resolve the case.

Corroboration from the Legal Community

Legal scholarship and bar-association experience largely reinforce the Air Force’s approach.

A 2020 article in the Ohio State Journal on Dispute Resolution examined early mediation programs across multiple jurisdictions and concluded that early mediation, particularly when flexible opt-out mechanisms are used, can reduce litigation costs and improve resolution rates.⁴ The article emphasizes that timing matters, but that delay often increases expense without meaningfully improving outcomes.

Similarly, the Michigan Bar Journal has documented successful pre-litigation mediation programs, particularly in civil and employment disputes, where mediation occurs before a complaint is filed. These programs report higher settlement rates, lower transaction costs, and greater participant satisfaction—especially when parties retain the option to pursue litigation if mediation fails.⁵

Other practitioner-focused commentary has emphasized that mediation is most effective when it is intentional and deliberately designed, rather than ad hoc or reflexive.⁶

Where Caution Is Warranted

Experience, both institutional and private, also confirms an important limitation: some disputes cannot be resolved too early. Cases involving incomplete information, unsettled liability theories, or evolving damages may require a period of development before meaningful negotiation is possible. In those matters, premature mediation can feel performative rather than productive.

The key is not choosing between early or late mediation as a matter of philosophy, but exercising judgment about readiness, informed by:

• clarity of the underlying facts,

• degree of positional entrenchment,

• cost trajectory of continued conflict, and

• the human or organizational toll of delay.

  
  

A Practical Takeaway

What the Air Force and the broader legal community demonstrate is not that mediation should always occur early, but that timing is a strategic decision, not a default. For lawyers, HR directors, and insurers, the question is not whether mediation should occur, but when it is most likely to alter the dispute’s trajectory.

In many cases, earlier intervention—before positions harden and costs multiply—offers the greatest opportunity for resolution. In others, waiting until issues crystallize may be the wiser course.

The value lies in having the experience to tell the difference.

Endnotes

1. U.S. Department of the Air Force, Air Force Mediation Compendium, 4th ed. (Washington, DC: Department of the Air Force, 2012), 10–11, https://www.airuniversity.af.edu/Portals/10/AFNC/dispute-resolution/AF-Mediation-Compendium-4th-Ed-2012.pdf.

2. Ibid., 11 (noting party concerns regarding insufficient information at early stages).

3. Ibid., 11 (explaining that unsuccessful early mediation does not bar later resolution).

4. Adam Noakes, “Mandatory Early Mediation: A Vision for Civil Lawsuits Worldwide,” Ohio State Journal on Dispute Resolution 36, no. 3 (2020): 410, esp. 428.

5. Martin I. Reisig, “Hold the Lawsuit: Pre-Litigation Mediation Resolves Disputes,” Michigan Bar Journal (December 2016): 20–22, https://www.michbar.org/file/barjournal/article/documents/pdf4article3012.pdf.

6. Tracy L. Allen, “Engineering Dispute Resolution Processes in Advance,” Michigan Bar Journal (August 2016), https://www.michbar.org/file/barjournal/article/documents/pdf4article2929.pdf.