Efficient Mediation Strategies for Advanced Circumstances – Half 2 – Litigation, Mediation, and Arbitration

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 face-to-face versus Zoom or other virtual platforms for mediation.

Timetable for effective mediation in complex cases

In any complex case, I assume that the parties will want to avoid going to court and try to resolve their disputes whenever possible. In my experience, most parties are not involved in litigation and find it undesirable and costly.

I also note that there are no rules for preparing the mediation, nor a template for a schedule, but I suggest that maybe both can be beneficial. It is clear that, in most cases, litigation is timely from the start, with document control and planning assignments, deadlines set in the rules of procedure, and calendar requirements set for the provision of certain legal remedies. So doesn’t it make sense that mediation best practices require the same thought, seriousness, discipline, and diligence as those we are used to in the underlying litigation? Additionally, I have to point out that setting a schedule for preparing the mediation is not only useful and necessary for the process, but is also a billable task that is too often ignored.

As part of the early internal processes, obstacles to successful mediation need to be carefully considered. Perhaps these are internal barriers, or perhaps they are perceived barriers that either the attorney or his client might have.

Many of us are asked by our clients to provide detailed pre-mediation reports that analyze all aspects of the case, law, witnesses and evidence. These are prescribed 60 or 90 or more days before the mediation and require detailed strategic thinking. They force us to think about the risks and strategies early on, but they are still part of the prep schedule I am writing about.

In addition, the insurance coverage and the layers of insurance that are available to both the customer and the counterparties in the case must be determined. What are these? What amounts are there in each case? What events trigger each shift? Have all carriers been notified? Are there reservations about rights that need to be addressed?

I also recommend the attorney to consider creating an internal mediation countdown with benchmarks to be followed. Communicating with either all lawyers in the case globally and / or groups of lawyers by type of party and / or with each lawyer in the case on an individual basis should be considered, so consideration should be given to how and when to structure these communications Discussions have to take place. In these conversations, I propose to encourage all parties to “show their hand” prior to mediation for several reasons, not least ensuring that the parties understand each other’s expectations of the mediation, but also that the parties are in the equation be able to include what strategy they will pursue will be part of the mediation and what authority is needed before and on the day of the mediation I would suggest that if the client requires a pre-placement report, these interviews be held between the parties’ lawyers at least 30 to 60 days before the pre-placement report due date so that what is disclosed can be properly addressed, and therefore the internal strategy The most suitable decision-makers of the customer are part of the dialogue long before the mediation. This premise means that there must be an aggressive training period many weeks, if not months, prior to mediation, and that length of time plays a role in the timeline.

While skeptics may say that the parties are unwilling to speak openly about their risks, they shouldn’t hesitate to have an open discussion about what to expect in mediation and what their goals are for mediation. In this way, the lawyer can shape not only the day of mediation, but also his relative success.

Mediation Mechanics in Complex Cases

Let’s start this topic by looking at the pros and cons of traditional personal mediation versus virtual mediation.

The recent pandemic has forced our profession to spin in a way that was unimaginable a few months ago. Previously, traditional mediation had mandated that the parties participate in mediation in person, or at least in the case of Adjusters, personally. When the mediator insisted that the parties attend the mediation in person, travel was often required for one or more parties and this often became an incentive to send a “placeholder” in place of a key decision maker. As a result, traditional mediation often resulted in the wrong party representatives sitting at the table in person, which provided a questionable incentive to resolve the case. These are the perceived negatives of personal mediation.

However, in-person mediations, unlike their virtual counterparts, usually did not require the use of special equipment (which may or may not be available to each party), but rather that advisors and clients are familiar with the use of the special equipment required, or that the parties have strong WiFi that is safe and free from interruptions. These were simply not required in traditional mediation.

For all its evils, the pandemic brought us some new ways to do things, and these in turn brought benefits. For the most part, virtual mediation does not require travel, so it is more efficient and maximizes the reassurance that key decision-makers are present and getting involved at little or no cost. The mediator, parties, and attorney can still see and hear each other even if they are not in person, and that is a small compromise for the convenience and flexibility of such mediations. Other considerations and realities speak in favor of using virtual mediation technology. These platforms allow, for example, the parties and lawyers to advance the case while maintaining the distance between those responsible. In addition, these referrals minimize the costly impact on businesses and individuals alike in the financial downturn caused by the pandemic and associated vacation days and budgetary constraints. The inability to go to court due to uncertainties about when in-person trials are safe, and the limitations of virtual trials, of course, mean that the parties can make personal and / or business planning the most difficult.

Regarding the disadvantages of virtual mediation, I suggest that most of them can be overcome with some logistical planning by a lawyer and the mediator prior to mediation. The parties and their lawyers can determine if there is a need for unavailable equipment and resolve it in advance by testing the phone and other possible equipment. The mediator can and should offer to hold demonstrations to ensure that the parties and lawyers have strong WiFi connections and that all parties involved understand the platform and its options. This way, the potential for these potentially difficult problems can be addressed well in advance of virtual mediation.

As a mediator who can virtually mediate, I have found that consultants and clients increasingly appreciate technology and love the convenience and flexibility that this type of mediation enables. Hopefully you have found this segment and the first part of the support.

The content of this article is intended to provide general guidance on the subject. A professional should be obtained about your particular circumstances.