Part Two of my series on Effective Mediation Techniques for
\nComplex Cases focuses on the timeline and mechanics of such
\nmediations and includes an analysis of in-person vs. Zoom or other
\nvirtual platforms for mediations.<\/p>\n
Timeline for Effective Mediations in Complex Cases<\/h3>\n
I begin with the assumption that the parties in any complex case
\nwish to avoid trial and resolve their disputes wherever possible.
\nIt is my experience that most parties are not in the business of
\nlitigation and find it undesirable and costly.<\/p>\n
I also observe that there are no mediation preparation rules nor
\nis there any template for a timeline but I suggest that perhaps
\nboth of these can be beneficial. Clearly, litigation is deadline
\ndriven in most cases from the outset with docket control and
\nscheduling orders, deadlines set forth in the procedural rules and
\ncalendar requirements set out to deploy certain remedies.
\nConsequently, does it not make sense that the best practices in
\nmediation require the same thought, earnestness, discipline and
\ndiligence as those we are accustomed to utilizing in the underlying
\nlitigation? In addition, I must point out that establishing a
\ntimeline for mediation preparation is not only meaningful and
\nnecessary to the process but it also is a billable task which is
\ntoo often ignored.<\/p>\n
As part of the early internal processes, careful thought must be
\ngiven to impediments to a successful mediation. Perhaps those are
\ninternal impediments or perhaps they lie with perceived obstacles
\neither opposing counsel or his\/her client may have.<\/p>\n
Many of us are required by our clients to provide detailed
\npre-mediation reports analyzing all aspects of the case, the law,
\nthe witnesses and the evidence. These are mandated 60 or 90 or more
\ndays ahead of mediation and they require detailed, strategic
\nthinking. They force us to be deliberative about the risks and
\nstrategies early on but they are yet one part of the preparation
\ntimeline of which I write.<\/p>\n
In addition, one must identify the insurance coverages and
\nlayers of insurance available to both one’s client as well as
\nthe opposing parties in the case. What are those? What amounts
\nexist for each? What events trigger each layer? Have notices been
\nprovided to all carriers? Are there reservation of rights issues
\nwhich must be addressed?<\/p>\n
I also recommend that counsel give thought to creating an
\ninternal mediation countdown with benchmarks which must be met.
\nThere should be communication either globally with all counsel in
\nthe case and\/or with groups of counsel by type of party and\/or with
\neach attorney in the case on an individual basis so thought should
\nbe given to how to structure those communications and when those
\ndiscussions must occur. In those conversations, I suggest urging
\nall parties to “show their hand” prior to mediation for
\nseveral reasons, not the least of which is assuring the parties
\nunderstand each other’s expectations for the mediation but also
\nso the parties can factor into the equation what strategy will be a
\npart of the mediation and what authority will be needed leading up
\nto and on the day of the mediation. I would suggest that if the
\nclient requires a pre-mediation report, those discussions be
\nconducted among counsel for the parties at least 30 to 60 days
\nahead of the due date for the pre-mediation report so that what is
\nrevealed can be adequately addressed in the internal strategy and
\nso the client’s most appropriate decision makers are part of
\nthe dialogue long in advance of the mediation. This premise means
\nthat there must be an aggressive period of education many weeks if
\nnot months prior to mediation and this time period factors into the
\ntimeline.<\/p>\n
While skeptics may say the parties will be reluctant to talk
\ncandidly about their risks, they should not be reluctant to have a
\ncandid discussion of what it is they expect at mediation and what
\ntheir goals are for the mediation. In this way, counsel has the
\nability to shape not only the day of mediation but also its
\nrelative success.<\/p>\n
Mechanics of Mediation in Complex Cases<\/h3>\n
Let’s begin this topic with a look at the pros and cons of
\ntraditional in person mediations vs. virtual mediations.<\/p>\n
The recent pandemic has forced our profession to pivot in ways
\nthat were unimaginable a few months back. Prior to that,
\ntraditional mediation dictated that the parties attend in person or
\nat a minimum, in the case of adjusters, those attend the mediation
\nin person. If the mediator was insistent that the parties attend
\nthe mediation in person, there was often travel involved for one or
\nmore parties and that frequently became the incentive to send a
\n“placeholder” instead of a key decision maker. As a
\nconsequence, traditional mediations often resulted in having the
\nwrong party representatives at the table in person and with that
\ncame a questionable incentive to resolve the case. These are the
\nperceived negatives of in-person mediation.<\/p>\n
But in-person mediations, unlike their virtual counterparts, did
\nnot usually require the use of special equipment (which may or may
\nnot be available to every party), that counsel and clients be
\nseasoned at using the special equipment required, or that the
\nparties have a strong wifi that is secure and free from
\ninterruption. These were simply not required in traditional
\nmediations.<\/p>\n
For all its ills, the pandemic brought us some new ways to do
\nthings and those in turn brought benefit. A virtual mediation does
\nnot require travel for the most part so it is more efficient and
\nmaximizes the assurance that the key decision makers are in
\nattendance and engaged for little or no cost. The mediator, the
\nparties and counsel can all still see and hear one another even if
\nnot in person and that is a small trade off for the convenience and
\nflexibility of such mediations. Other considerations and realities
\nmitigate in favor of using the technology to do virtual mediation.
\nFor example, these platforms allow the parties and counsel to move
\nthe case forward while maintaining responsible party distancing. In
\naddition, in the financial downturn caused by the pandemic and the
\nattendant furloughs and budgetary constraints, these mediations
\nminimize costly effects on businesses and individuals alike. Of
\ncourse, the inability to get to trial because of the uncertainties
\nof when in-person trials will be safe, coupled with the limitations
\nof virtual trials mean that the ability of parties to make personal
\nand\/or business planning most difficult.<\/p>\n
As for the cons of virtual mediation, I suggest that most of
\nthese can be overcome with some logistical planning by counsel and
\nthe mediator ahead of mediation. The parties and their attorneys
\ncan determine whether there is a need for equipment that is
\nunavailable and solve that ahead of time by testing phone and other
\npossible equipment. The mediator can and should offer to conduct
\ndemonstrations to assure the parties and counsel have strong wifi
\nconnections and that everyone involved understands the platform and
\nits options. In this way, the potential for these potentially
\ndifficult issues can be addressed in plenty of time prior to the
\nvirtual mediation.<\/p>\n
As a mediator who is comfortable conducting mediations
The content of this article is intended to provide a general
\nvirtually, I have found that, increasingly, counsel and clients
\nhave embraced the technology and love the convenience and
\nflexibility these sorts of mediations allow. Hopefully, you found
\nthis segment and Part One<\/a> of
\nassistance.<\/p>\n
\nguide to the subject matter. Specialist advice should be sought
\nabout your specific circumstances.<\/em><\/p>\n<\/div>\n
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