Monday, April 12, 2010

"Premature" Mediation

Mediation is often thought of as a one-time event in the history of a litigated case; best designed to take place after the parties have done an adequate amount of discovery, have a pretty good idea of how the case might play out at trial, and are sufficiently tired of paying their lawyers' bills that they are receptive to putting an end to the dispute.  The mediator is then expected in a few hours to unravel a mess that may have taken years to construct, and that oftentimes seems to move further from resolution after months of litigation.

What would happen if a mediator were to get involved before the case is generally considered "ready" for mediation?  I had a chance recently to test some of my theories about the potential for a mediator's constructive involvement at an earlier-than-usual stage of the case, in a case where the parties had not had a chance to complete some basic discovery before the impending mediation completion date.  Instead of asking the court for more time, they decided to go ahead with the mediation even though the case was not "ready."  It quickly became apparent in this dispute about the development of some property, that the parties were in no position to reach the negotiating phase of a mediation session, because they needed to exchange more information about how monies were expended, what work was done, and  other matters.  Without that information, they could not even assess the amounts to demand or offer each other.  Instead we turned our attention to two important purposes.  First, knowing that we were probably not going to be able to negotiate a settlement, the parties found themselves surprisingly freed up to have an open conversation with each other about the facts in dispute, as well as to talk about some options for resolving the dispute (e.g., selling the property, making a renewed effort to develop the property, etc.) , without ever getting into the contentious subject of the amounts of money that might need to change hands to complete the deal.  Second, meeting with the parties before they had launched into extensive discovery also gave us the chance to explore various ideas for exchanging information in a cooperative manner that would minimize the need for expensive depositions, motions, requests, written responses, and all the other associated costs of traditional adversarial discovery.  I extracted a promise from both sides that over the next 60 days they would endeavor to exchange the necessary information without unnecessary fighting about their respective requests.  I told them that after they did that, they were free to meet with me again and try to settle the case, or if they preferred, they could just go ahead and get the case ready for trial.

It remains to be seen whether a mediator's intervention at this "premature" phase of the case will set the case on a better track than otherwise.  I doubt anyone's ability to prepare for trial, or to litigate the case aggressively down the road, will be prejudiced by a period of cooperative exchange of information.   The rules already encourage that kind of cooperation, but many times parties instead slip into an adversarial mode from the outset, that only increases expense and delay for both sides.  My hope is that an earlier-than-usual meeting gives the parties and their attorneys enough of a taste for constructive discussion and problem-solving, that they will apply those skills to the eventual settlement of the case, rather than drive themselves further apart by approaching every problem they still face in this case in an adversarial manner.

(photo from Niagara Falls Boxing)


John Lassey said...


I like the approach you are using in this case and look forward to hearing how it comes out. Taking your idea a step further, what do you think about mediator involvement at the Rule 26(f) conference in an appropriate case?


Joe Markowitz said...

Thanks for your comment, John. I think there is a lot of potential for making greater use of mediation in discovery and other early stages of litigation. I and others have suggested assigning members of the federal mediator panel in our district for this purpose. But there may be some institutional resistance to expanding the use of mediators for this purpose.

In state court there seems to be more opportunity to assist with discovery matters, since cases are often assigned to mediation after the initial case management conference, and many parties put off doing expensive discovery until after they try to mediate the case. Then they sometimes find, as in the case I described, that they can't settle the case without obtaining more information from each other. But if you can't settle the whole case at a mediation, and instead try to leave the parties with some parting advice about cooperatively exchanging information with a view toward settlement, you still run the risk of sending the parties off into expensive and protracted discovery battles because you can't always be there to persuade them to handle these matters in a more sensible way. And then you never see them again, and they don't settle the case until they get to a settlement conference before a judge, or somewhere near the courthouse steps as trial is approaching.

Lots of lawyers are good at keeping the settlement track open while they prepare for trial, but lots of others are more apt to burn bridges. Perhaps what parties and attorneys ought to be encouraged to do is retain a mediator as a coach to help guide both parties through discovery and other potentially inflammatory areas, and keep the settlement track open throughout.