Discovery

{4 minutes to read} I have written before about when is the best time to mediate. No, you don’t have to go back and re-read that blog because the answer is simple: Now. Now is the best time to mediate. 

Does that mean, now, now, or now with some lag time?  Ok, now with a little lag time. A party can’t mediate by itself, so there are by necessity some preliminaries, like getting the other side(s) to participate in the mediation. However, that is becoming easier as more courts increasingly direct the parties to mediation without waiting for an agreement. If you want to see a good example, look at the ADR rules for the Federal District Court for the Western District of New York or the rules for North Carolina State Courts and federal courts: Eastern District of NC, Western District of NC, and Middle District of NC.

But now does not mean after two years of discovery when parties have spent their respective inheritances and children’s college tuition paying their attorneys. That’s so yesterday. Most mediations start with a conversation between the attorneys and the mediator and one of the first questions a mediator asks is, “What discovery is needed before we hold a formal mediation session?” The great thing about exploring that issue upfront is that the discovery a party might seek in the course of litigation becomes greatly reduced when addressed in the context of mediation. 

In litigation, attorneys must ask for the moon and the stars. If they didn’t, they could be committing malpractice. Attorneys need to turn over every stone – and there can be lots of them – because they may not know what lies beneath each one until they are all turned over. However, for purposes of a mediation, it is usually not difficult to greatly compress both what is asked and the time needed to respond to the ask. 

By the time most lawsuits are commenced, the parties know generally what they are looking for, and they can quickly make at least an educated guess as to how the case might be resolved. They don’t have to be correct – and minds may change significantly even over the course of the mediation – just have an idea. That’s more than enough to generate lots of discussion and movement.

I realize this all has an oxymoronic quality to it. If to properly pursue a case in litigation full discovery is required, why wouldn’t one need the same discovery to negotiate a settlement? Wouldn’t one want to know, or need to know, the same information?  Abstractly, yes. However, in the non-abstract world, i.e., the one we live in, it turns out people don’t need perfect information to make decisions and one of those is being able to settle a dispute without taking, for example, all the depositions an attorney would rightfully want to take if a case were going to trial.

Most disputes resolved through mediation get resolved without people possessing perfect information. That’s partly because rarely is a perfect solution necessary for people to move on from a given dispute. Were that not the case, I’d have been besieged with phone calls from attorneys or their clients telling me how unhappy they were with the outcome. I’m still waiting for the first of those calls. Given the opportunity – which mediation provides – almost everyone is capable of making a decision that puts a dispute to rest and allows them and/or their business to continue and thrive.

Gary Shaffer Shaffer Mediation Gary@ShafferMediation.com