Before discussing the value of early mediation, let’s start with three questions to ask yourself and discuss with your client about the dispute situation:
1. How quickly does your client need to get the dispute resolved?
2. Is most of the relevant information needed to resolve this dispute available or ascertainable?
3. Are the parties trustworthy enough and willing to exchange all relevant information voluntarily and without delays?
If the answer to question 1 above was as soon as possible or in less than six months, and the answers to questions 2 and 3 were both yes, then it’s worthwhile to keep reading about early mediation. This is especially true if preserving the relationship between the disputing parties is important. If your client wants the dispute to drag out over at least two years and you, your client and/or the other side in your dispute prefer to play old school “hide the ball” with what you think is key information and disclose it at that pivotal “Hollywood moment” in your trial, you can stop reading now. But in the interests of informed consent, please do ad-vise your clients that they will be in this litigation for a couple of years or more, they’ll be spending a lot of money on fees and costs, and that the chances of having their “day in court” and seeing that “Hollywood smoking gun moment” in a trial are less than 3 percent.
Here’s some quick general information about mediation. Mediation is an effective way of resolving disputes that are right for mediation. It is a voluntary process in which the parties agree upon a neutral person (usually a lawyer) trained as a mediator to help them, and their lawyers, if they have lawyers, work toward resolving their dispute. The mediator facilitates the negotiation process with the goal of reaching a mutually acceptable settlement. The mediator cannot give either side legal advice and cannot ultimately determine the outcome. There are cases for which a more evaluative-style mediator is better; other cases call for a more facilitative style. Often both are helpful. The dispute is resolved when the parties reach an agreement as to the elements of the settlement, and the terms of their agreement are reduced to a written settlement agreement.
There are different styles of mediating, some variations on the structure and the timing of the mediation. This timing and structure of the mediation is vitally important to the parties, but they are rarely consulted about structure or timing before the mediation takes place. This is where we go back to those initial questions to determine if and when early mediation should be utilized.
The traditional litigation track with mediation at the end
For most lawyers, especially litigators, mediation is part of the litigation process. They see it as a step that follows other procedural steps like the pleadings, discovery and motion practice, but before trial. After these steps are completed, lawyers will often suggest using mediation to settle the case. This is an alternative to going to trial and leaving the matter up to an unpredictable jury to decide. This is often the first time litigators have a meaningful discussion with their clients about the mediation option. By this time, a few things have happened that would also make clients receptive to mediation:
1. The clients, who were probably all pumped up and ready to go to war with the other side when they first came to the lawyers, are now emotionally weary of the matter and don’t want any more of their energies, resources or emotions drained by this process, and want to get it over with;
2. The clients have come to realize that their case was not the ironclad, “slam-dunk” case they thought it was at the beginning;
3. The clients do not want to spend any more time, money and energy on this case, having already spent thousands of dollars and waited two years or more, with trial looming six months or more in the distance that will likely cost thousands more;
4. The clients are concerned about an unpredictable jury deciding this case based on things other than facts and the law that might sway the jury a certain way.
This late mediation is usually a full-day event with the mediator shuttling between the parties for most of the day in a caucusing-style negotiation process, controlled by the mediator. This creates another factor in this traditional all-day mediation structure. Around 4 p.m. or so, or close to what is perceived as the end of the day, there is an unspoken, unconscious but noticeable stress the parties feel to get the matter settled that day. They do not want to leave the all-day negotiation without having a settlement. This is not a pressure coming from one side or the other, but one that is inherent in this type of all-day mediation process, especially when one or more of the parties traveled a great distance to get to the mediation. And so around 5 p.m., at the end of the day, the parties feel they have to settle. And they usually do.
The features and value added of early mediation
An alternative, in the right cases, is to approach mediation differently, and use it earlier in the life of the dispute: at the beginning, nearly two years earlier than traditional mediation. Instead of an all-day event with that inherent pressure at the end to settle without an optimum resolution, consider a mediation process done over several shorter sessions, each with a clear purpose and structure. Here are some of the features of early mediation that may be appealing to your clients:
1. The parties engage in the mediation before any complaint has been filed, before the court system is involved and before the civil procedure process is initiated.
2. The mediation takes place over three (or more as needed) shorter sessions (approximately 1.5 to 2 hours each), each designed to accomplish specific things and with a clear agenda.
3. This a completely confidential process and there has been no public (court) filing.
4. The parties, assisted by the mediator and advised by their lawyers (if they have lawyers), are the decision makers and have control over the outcome.
5. The parties control the tempo and the scheduling of the mediation sessions to fit into their time frame for resolving the matter and their personal schedules, and for maximum productivity.
6. Any necessary exchange of relevant information needed to resolve the matter through this structured negotiation is discussed, mutually decided upon in the first mediation session, and exchanged before the second session.
7. Ample opportunity for considering each party’s needs and interests, including giving each party the chance to be heard and to listen to the other party (i.e. “getting your day in court”) in a structured, controlled setting is given to the parties in the second (and if needed additional) mediation session.
8. The parties may bring into the mediation process any expert opinion assistance they need to resolve the matter. Unlike litigation, they jointly agree to hire one neutral, independent expert, they share the cost and they have the value of an expert resource available to them throughout the mediation.
9. The agreed upon options for resolution are discussed and decided upon in the third mediation session, and then are reduced to a written resolution agreement.
10. This type of mediation process takes only as long as the parties need it to and is faster, less expensive, more efficient, more creative in developing solutions and less draining upon the parties’ resources, time, energies and emotions than litigation or arbitration.
In both scenarios, the traditional style of mediation and the early mediation, most cases get resolved through mediation. The difference is that in the traditional, litigation-based setting, the mediation settlement comes by default rather than by design, after two years of preparing for a trial that rarely happens and may not result in the best possible resolution. The clients have spent thousands of dollars and likely have damaged or destroyed any important relationships. In early mediation, the resolution is reached by intention and design because the parties and the lawyers pursue a negotiated resolution from the outset and design the process for that purpose. The earlier approach preserves a key business or personal relationship, and avoids the draining of the clients’ resources, energies and emotions. These factors lead to a more creative, complete and desirable outcome.