One of the most challenging aspects of negotiations concerns when they should take place. This is particularly true of referrals to mediation. At the time of writing the consultation period for the UK Department of Constitutional Affairs (DCA) discussion document (A New Focus for Civil Legal Aid – encouraging early resolution: discouraging unnecessary litigation, hereafter New Focus) has ended and the responses are being considered. A number of the points below have already been included in the National Family Mediation’s representations to the DCA. They are reviewed here to explore some of the implicit assumptions of New Focus, with particular reference to the academic dispute resolution literature.