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An Alternative Approach to Pre-Mediation Discovery

Revised and updated from an article first published in the San Francisco Daily Journal

Every litigator knows that a lawsuit takes on its own life and timeline. Well-informed clients know this and have been counseled to plan accordingly, not only in budgeting for the economic cost and time commitment, but also for the expensive “rent” the client will be paying for the space in his or her head for the duration of the case and any appeal. That emotional cost and it can be very high.

Not all clients, whether people, partnerships or supposedly faceless corporations can survive the impact of these litigation costs in their personal and financial lives. The economic downturn of the last several years has proved this. Litigation is and will remain an expensive proposition. Budget constraints have increased the delay in the getting cases through the courts. Many courts have reduced the number of trial departments and several have completely disbanded their ADR programs. By all accounts, these wholesale cuts are likely to continue.

Smart lawyers, who are also “counselors-at-law” are not only familiar with these issues, but recognize the pragmatism of advising clients to consider mediation early on in a dispute, perhaps even before litigation is filed. Post-filing, they regularly step back from the litigation, assess how the risks and benefits to the client may have changed by reason of information revealed through discovery, or other outside factors such as the client’s personal circumstances, and counsel the client to consider whether and when to enter the mediative process. This article explores how disputes in which litigation is contemplated or has commenced, may be strategically positioned for early mediation whilst providing for enough core discovery to make mediation meaningful, but not breaking the bank.

At the outset, let’s agree that not all cases are suitable for mediation. Public interest and potentially precedent-setting cases may be among those that need to be tried. However, experience reveals that parties in private disputes involving commercial, business, real property, inheritance, partnership, professional liability and employment, (particularly harassment and discrimination) may want to retain some self-determination over when and how the dispute ends. They understand how their businesses, reputations and private lives might be severely impacted by adverse publicity or an adverse result. Hopefully, their lawyers have told them that approximately 98 percent of all litigated cases settle anyway and that close to 93 percent of cases that go through the mediative process will settle at the mediation session or shortly thereafter. This is remarkable and serves as a testament to the mediative process. It illustrates that most disputants ultimately regard their personal needs and business interests as paramount to “winning” whatever that means in reality.

Lawyers and mediators already know that many cases of the type mentioned above are often fact-specific or document-oriented. Yet, what experienced litigator would disagree that it is the “game-playing” by parties and counsel, sometimes enabled by the reluctance of judges and commissioners to award sanctions for discovery abuse, that may prolong discovery and leave parties and also their insurers frustrated that the fees and costs often outweigh the monetary value of the dispute.

So how can mediators work with parties and their lawyers to “position” disputes for early mediation, but allow for sufficient pre-mediation discovery, without “over-lawyering” the case too early? Mediators may provide added value, beyond the traditionally required skills as active listeners, facilitators, negotiation coaches and messengers. In a joint telephone conference with all counsel, I routinely remind them of the long-term financial and emotional costs identified above and the unavoidable delay in getting to trial, emphasizing that, unlike good wine, most cases don’t age well with delayed presentation. I ask them if they are willing to be open-minded to some suggestions, consider a truncated discovery process, waive the strict timetables imposed by the Code of Civil Procedure and co-operate to promote early mediation.

Here are some practical suggestions I have made to attorneys and found to be acceptable. First, with regard to interrogatories, I suggest they agree to check only the boxes on form interrogatories that elicit a party’s background information, identity of witnesses, existence of insurance coverage, and, in relevant cases, medical treatment. Checking boxes asking questions about factual and legal contentions generates little of value, since at least in most cases, the complaint is adequate. Counsel usually draft responses to questions seeking all facts supporting affirmative defenses and experience shows that they “manipulate” (no offence intended, but no elaboration needed) the responses and seldom provide much information of real value.

With regard to propounding special interrogatories, I suggest no more than ten carefully tailored questions and the same for a demand for documents, no more than ten carefully tailored categories of documents. These should be designed to elicit “must have” information critical to the early evaluation of the case for mediation purposes. The responses should be verified and served within 15 days, the only objections being as to privileges recognized by the Evidence Code and not as to form, alone. Yes, this would undoubtedly require the drafter to really think about what information is critical and why. However, it would discourage thoughtless checking of boxes on form interrogatories seeking irrelevant and potentially inadmissible information. It would preclude drafting of excessive numbers of long-winded, cumulative special interrogatories and document demands. It would obviate requests for extensions of time to respond which are often followed by useless, self-serving responses, anyway. These all delay case resolution and add to the cost of litigation.

Since depositions are usually the most expensive of the discovery tools, I recommend agreeing to one deposition per party. These could be taken shortly after receipt of the written discovery responses discussed above. Each deposition would last a maximum of three to four hours, the goal being to examine the deponent’s factual recollection, elicit clarification and explanation of written discovery responses already received (particularly emphasizing documents authored by the deponent), and test the deponent’s demeanor and overall credibility. The cost of the reporter’s original transcript could be split between all attorneys attending the deposition, another sign of co-operation.

Counsel can stipulate and even the agreement to mediate might recite that, in the event of impasse at mediation, additional written discovery, including requests for admission, further special interrogatories and document demands may be propounded, and unfinished depositions completed.

In some cases, I have suggested that, instead of deposing third party witnesses, their declarations under oath be exchanged prior to the mediation and sent to the mediator with the mediation briefs, on the understanding that if the case does not settle, those witnesses would be voluntarily produced for cross-examination at deposition and subpoenas issued for other witnesses as necessary. Already existing medical records and expert’s reports should also be voluntarily exchanged, with the understanding that expert’s reports will constitute the expert’s “direct testimony” for later deposition or trial, again subject to cross-examination. This would not preclude the retention of additional experts, assuming no settlement of the case at mediation. Because the mediative process is cloaked with confidentiality, I have elicited agreement between counsel that all of the “truncated” pre-mediation discovery discussed above would be admissible at trial and could be supplemented for trial purposes. However, material specifically generated for illustrative purposes at mediation, such as graphs and illustrations, would remain subject to mediation confidentiality, unless otherwise agreed.

It is recognized that some cases may not be susceptible to the limited pre-mediation discovery outlined in this article. I also acknowledge that some plaintiff attorneys as well as insurance companies and their defense counsel may believe in spending whatever it takes to fully discover the case before agreeing to mediation. However, in the so many cases where the goal of the parties and counsel is to de-escalate hostilities and resolve the dispute with minimum economic and emotional cost to the parties and with maximum efficiency, I know many experienced mediators, like myself, who will go that extra mile to foster co-operation among counsel willing to be open to these and other suggestions that bring added value to the mediative process and make its success more likely.


Malcolm Sher, Esq

Malcolm Sher, based in the San Francisco Bay Area, is a full time mediator who has resolved hundreds of real property, business, partnership, trust/estate, professional liability and employment cases, many of which involve significant emotional issues. In the majority of his cases, the disputants are from diverse cultural and ethnic… MORE >

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