September 21, 2017

Mediating Early?  Do These Three Things

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More parties are mediating earlier than ever before – often before or right after the lawsuit is filed.  Early mediation can be very effective, especially when you consider the following three strategies.

#1: Consider Whether You Should Mediate Early.

In my almost 20 years as a mediator, I have found that the biggest obstacle to successful early mediation is that each side assumes the other should understand its assessment of case value -- without providing substantive information.  When considering early mediation, ask yourself if you are reluctant to share information that hasn’t been sought in formal discovery. If so, it’s helpful to ask another key question: will your client be in a better, worse or similar bargaining position after lengthy discovery?

If there is a strong likelihood that some limited discovery, such as a deposition of a credible witness, will enhance your client’s bargaining position in the eyes of your opponent, then it would be helpful to complete the limited discovery before you mediate.

However, if your client will likely be in the same or worse bargaining position, then it would be better to mediate early and control how evidence gets shared in mediation. 

If early mediation is right for your client, I encourage you to consider two additional strategies.

#2: Exchange Mediation Briefs.

Attorneys generally prefer to keep their briefs confidential.  Yet I can tell you that confidential briefs often prevent successful resolution in early mediation, particularly when there is a huge gap in each side’s assessment of case value. 

When mediating early, it is almost always a good idea to exchange mediation briefs.  Additionally, it's helpful to look at the case from your opposing party’s perspective to determine what kind of evidence and arguments will help it understand your client’s perspective. 

Consider developing documents specifically for the mediation, such as witness statements and expert reports.  California's mediation privilege protects the disclosure of such documents outside of the mediation.  See Evidence Code Section 1119(b).

#3: Share Your Evidence.

It’s useful to provide key evidence to the other side before mediation so your opposing party and counsel can digest it.  In my experience, sharing evidence for the first time at an early mediation can result in an impasse, particularly if the evidence is complicated and difficult to absorb, or if it creates a large swing in case value. 

Additionally, if your assessment of case value is based on the recollection of a witness, consider providing a witness statement, or better yet, bring the witness to the mediation for a limited joint session on the issue.

As plaintiff’s counsel, if your assessment of case value is based largely on a more subjective criterion, such as emotional distress, then you should determine how to show this damage claim to the defendant in an early mediation.  A limited joint session on this issue can be very effective.

As defense counsel, if your client lacks the financial means to pay a large judgment, be prepared to show credible financial information to convince the plaintiff at this early stage to discount the case.

Providing meaningful evidence in early mediation signals to your opposing party and counsel that you respect them, their time and the mediation process; it will also show the other side that you will be a prepared to try the case if necessary.

Filed Under: Mediation, Negotiation

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