Part Two of my series on Effective Mediation Techniques for
Complex Cases focuses on the timeline and mechanics of such
mediations and includes an analysis of in-person vs. Zoom or other
virtual platforms for mediations.

Timeline for Effective Mediations in Complex Cases

I begin with the assumption that the parties in any complex case
wish to avoid trial and resolve their disputes wherever possible.
It is my experience that most parties are not in the business of
litigation and find it undesirable and costly.

I also observe that there are no mediation preparation rules nor
is there any template for a timeline but I suggest that perhaps
both of these can be beneficial. Clearly, litigation is deadline
driven in most cases from the outset with docket control and
scheduling orders, deadlines set forth in the procedural rules and
calendar requirements set out to deploy certain remedies.
Consequently, does it not make sense that the best practices in
mediation require the same thought, earnestness, discipline and
diligence as those we are accustomed to utilizing in the underlying
litigation? In addition, I must point out that establishing a
timeline for mediation preparation is not only meaningful and
necessary to the process but it also is a billable task which is
too often ignored.

As part of the early internal processes, careful thought must be
given to impediments to a successful mediation. Perhaps those are
internal impediments or perhaps they lie with perceived obstacles
either opposing counsel or his/her client may have.

Many of us are required by our clients to provide detailed
pre-mediation reports analyzing all aspects of the case, the law,
the witnesses and the evidence. These are mandated 60 or 90 or more
days ahead of mediation and they require detailed, strategic
thinking. They force us to be deliberative about the risks and
strategies early on but they are yet one part of the preparation
timeline of which I write.

In addition, one must identify the insurance coverages and
layers of insurance available to both one’s client as well as
the opposing parties in the case. What are those? What amounts
exist for each? What events trigger each layer? Have notices been
provided to all carriers? Are there reservation of rights issues
which must be addressed?

I also recommend that counsel give thought to creating an
internal mediation countdown with benchmarks which must be met.
There should be communication either globally with all counsel in
the case and/or with groups of counsel by type of party and/or with
each attorney in the case on an individual basis so thought should
be given to how to structure those communications and when those
discussions must occur. In those conversations, I suggest urging
all parties to “show their hand” prior to mediation for
several reasons, not the least of which is assuring the parties
understand each other’s expectations for the mediation but also
so the parties can factor into the equation what strategy will be a
part of the mediation and what authority will be needed leading up
to and on the day of the mediation. I would suggest that if the
client requires a pre-mediation report, those discussions be
conducted among counsel for the parties at least 30 to 60 days
ahead of the due date for the pre-mediation report so that what is
revealed can be adequately addressed in the internal strategy and
so the client’s most appropriate decision makers are part of
the dialogue long in advance of the mediation. This premise means
that there must be an aggressive period of education many weeks if
not months prior to mediation and this time period factors into the
timeline.

While skeptics may say the parties will be reluctant to talk
candidly about their risks, they should not be reluctant to have a
candid discussion of what it is they expect at mediation and what
their goals are for the mediation. In this way, counsel has the
ability to shape not only the day of mediation but also its
relative success.

Mechanics of Mediation in Complex Cases

Let’s begin this topic with a look at the pros and cons of
traditional in person mediations vs. virtual mediations.

The recent pandemic has forced our profession to pivot in ways
that were unimaginable a few months back. Prior to that,
traditional mediation dictated that the parties attend in person or
at a minimum, in the case of adjusters, those attend the mediation
in person. If the mediator was insistent that the parties attend
the mediation in person, there was often travel involved for one or
more parties and that frequently became the incentive to send a
“placeholder” instead of a key decision maker. As a
consequence, traditional mediations often resulted in having the
wrong party representatives at the table in person and with that
came a questionable incentive to resolve the case. These are the
perceived negatives of in-person mediation.

But in-person mediations, unlike their virtual counterparts, did
not usually require the use of special equipment (which may or may
not be available to every party), that counsel and clients be
seasoned at using the special equipment required, or that the
parties have a strong wifi that is secure and free from
interruption. These were simply not required in traditional
mediations.

For all its ills, the pandemic brought us some new ways to do
things and those in turn brought benefit. A virtual mediation does
not require travel for the most part so it is more efficient and
maximizes the assurance that the key decision makers are in
attendance and engaged for little or no cost. The mediator, the
parties and counsel can all still see and hear one another even if
not in person and that is a small trade off for the convenience and
flexibility of such mediations. Other considerations and realities
mitigate in favor of using the technology to do virtual mediation.
For example, these platforms allow the parties and counsel to move
the case forward while maintaining responsible party distancing. In
addition, in the financial downturn caused by the pandemic and the
attendant furloughs and budgetary constraints, these mediations
minimize costly effects on businesses and individuals alike. Of
course, the inability to get to trial because of the uncertainties
of when in-person trials will be safe, coupled with the limitations
of virtual trials mean that the ability of parties to make personal
and/or business planning most difficult.

As for the cons of virtual mediation, I suggest that most of
these can be overcome with some logistical planning by counsel and
the mediator ahead of mediation. The parties and their attorneys
can determine whether there is a need for equipment that is
unavailable and solve that ahead of time by testing phone and other
possible equipment. The mediator can and should offer to conduct
demonstrations to assure the parties and counsel have strong wifi
connections and that everyone involved understands the platform and
its options. In this way, the potential for these potentially
difficult issues can be addressed in plenty of time prior to the
virtual mediation.

As a mediator who is comfortable conducting mediations
virtually, I have found that, increasingly, counsel and clients
have embraced the technology and love the convenience and
flexibility these sorts of mediations allow. Hopefully, you found
this segment and Part One of
assistance.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.