Chapter 2 Timing of Mediation Pre-litigation, Early Mediation, or Late Mediation

• Library: From the Trenches III: Pretrial Strategies for Success (ABA) (2018 Ed.)

Chapter 2 Timing of Mediation Pre-Litigation, Early Mediation, or Late Mediation Andrew R. Kasnetz Introduction

As a prefatory comment, not all cases should be mediated. Some need to be tried. Some issues need to be tested. Occasionally, policy or precedent consideration precludes settlement because floodgates may open. Sometimes lawyers and reasonable litigants can also resolve matters on their own. This chapter is not about those cases. It is about all others. So, when the question is—when to mediate? The answer is—it is all about judgment.

As this discussion proceeds, various factors, at least the ones the author thinks are most important, will be discussed. You will likely agree with some, maybe even most, but not others. But, ultimately, the assessment and resulting decision whether and when to mediate (assuming you have a willing client, opposing party, and counsel) will depend on your judgment. Hopefully, some young(er) lawyers will have more of that than the author did at your age. My hope is you will at least consider, if not rely on, some of the discussion points.

So, when to mediate? The simple answer is—whenever the parties agree (or when a judge, generally federal, tells you). While mediation can take place at any stage of a dispute, the choices are generally:

• Pre-suit
• Early on—just after the lawsuit has been filed
• Early(ish)—after a voluntary exchange of information and documents
• After some or all fact discovery
• After some or all expert discovery
• Just before trial
• During trial (rarely)
• After trial but before entry of judgment
• During appeal

There are some general things to keep in the back of your mind. First, as a business/commercial litigator with a fair amount of trial, appellate, and mediation experience, my frame of reference comes from that background. Second, the timing of mediation does, at least arguably, depend on the type of dispute or lawsuit being litigated. For example, commercial fraud cases are inherently factually intensive. You probably do need to examine those e-mails (and perhaps fight for those internal memoranda—are they really privileged?) in order to assess your case. Caveat: (as lawyers say) you do not really need all of those documents to establish a case for punitive damages before mediating. Does anybody really settle a case based on punitives anyway? Another example is when there is clearly a need for expert opinion information, at least reports. This is most likely essential in medical malpractice, products liability, and intellectual property litigation, among others. Sometimes such information is available early and can be freely exchanged, but sometimes not. A final example is matters involving complex, or at least fairly complex, financial issues. This is particularly so in cases where forensic accounting is required or valuation is at the core of the dispute, often concerning property, real or personal, the value of or damage to businesses, and, in particular, lost profits and business interruption.

With all that said, sophisticated lawyers and parties can find traditional and creative ways to share information to make early mediation possible, and perhaps successful, even where such issues are involved.

Mediating Pre-Suit

The first...