A Lawyers Mediation Guide
Mediation Suitability Checklist
Mediation is appropriate in any case in which you and your client are interested in controlling the outcome. Experience indicates that mediation can be most effective when all or some of the following conditions are present. The absence of these conditions does not make successful mediation impossible, however conflicts lacking any of these characteristics will settle less frequently than conflicts with many of them.
- There is a manageable number of issues in dispute and there may even have been agreement on some items.
- There is, or may be, an ongoing relationship.
- There is a limited number of parties.
- The hostility level of the parties towards each other is moderate or low and there may have been some history of problem solving among the parties in the past.
- Settlement is being encouraged by external pressures (time, unpredictable outcomes, diminishing benefits, etc.)
- The conflict arose from a communication breakdown, error in judgment, poor performance or negligence as opposed to willful deception or fraud.
- There are multiple needs and wants of the parties from which can be generated creative solutions to the dispute.
Mediation is especially useful in the following situations:
- other side is non-responsive
- other side is not evaluating case realistically
- client and/or lawyer control problems exist
- confidentiality is a concern of your client
- your client wants to avoid setting a legal precedent
- the number of parties and/or complexity of issues makes direct negotiation difficult or impossible
Agree provides mediation services in all types of conflicts including:
- contract negotiation
- corporate or commercial disputes
- shareholder or partner disagreements
- real estate and lease disputes
- construction and engineering conflicts
- environmental problems
- separation and divorce
- employment disputes, including wrongful dismissal
- franchise disputes
- personal injury cases
- organizational conflicts in business, government or the non-profit sector
- lender and debtor problems
Timing of Mediation
There is no hard and fast rule for determining when a case is most appropriate for mediation. Mediators have successfully mediated disputes ranging from pre-filing claims to cases on the eve of arbitration or trial. Our experience has been, however, that the optimal time for a mediated settlement occurs as soon as each party has sufficient information to evaluate the case. That information can be obtained through informal or formal discovery, preferably before the mediation session in order to allow the other parties to properly assess the impact of the information.
- You may mediate as soon as you have sufficient information to evaluate your client's case for settlement.
- Mediation may be very effective early in the litigation before incurring discovery and other litigation costs when you basically know what information formal discovery is going to produce
- Once you have sufficient information to evaluate your client's case, you are prepared to negotiate even if you have not yet completed all discovery necessary for trial.
- We have had successful mediations in cases in which no discovery has taken place.
The only danger of mediating too early is that a second session may be required. The mediator can serve a very useful role in the first session, however, by helping the parties focus the issues and determine what information should be exchanged and when that exchange can be accomplished. The cost saving to the parties of that "discovery management" usually well exceeds the expense of a second session.
At the other end of the spectrum, mediations held after the parties have completed all discovery and are on the eve of a trial can make for a rough and frustrating day of negotiations. Once the parties have spent so much time, energy and money gearing up for trial, they are not often in the best frame of mind to sit down and discuss settlement. Their flexibility in negotiating positions has been decreased substantially due to the costs of the litigation, and animosity between the parties and/or counsel may have built up during the course of discovery. However, even at this stage, mediators are frequently successful in re-focusing parties on cooperative problem solving — leading to settlement.
What is "Sufficient Information "?
One way of approaching this question is to ask yourself what hard information you need to settle the case if you were your opponent. Business loss, wage loss and medical records, witness statements, police and investigation reports, contract documents and important correspondence are the most frequently sought after documents. Although it is possible to settle the case at mediation when a portion of the necessary information is disclosed for the first time at the table, the success of the mediation session often is directly proportional to the amount of information disclosed prior to the session.
Use of Experts and Consultants at Mediation
In a small percentage of the cases we mediate, a proper evaluation of the case from one or more sides requires the input from experts or consultants. We have found that involving them in the mediation process can greatly assist in a needed exchange of information and avoid time and expense of expert depositions. Facilitated face-to-face meetings between the experts or consultants generally allow for a much more cooperative, efficient and cordial discussion, definition and resolution of disputed issues. When it is clear that the experts are so far apart that their participation in the mediation will not be fruitful, we have on occasion suggested that the parties retain an independent expert to render an advisory opinion.
If you want to bring a matter forward for mediation, simply call Agree and provide the particulars by phone.