Early mediation is a waste of time.
This was a refrain I heard several months ago at a meeting of lawyers representing large corporations.
Indeed, attempts to settle cases early in litigation are wasteful — if the lawyers haven’t properly prepared and planned the process. (References to lawyers in this post generally include the parties.)
On the other hand, it is also wasteful if lawyers wait until virtually all discovery is completed and they are ready to try the cases.
Part of the problem is confusion about the meaning of “early.” Some people think that “early” means that lawyers should try to resolve the ultimate issues right after all the parties have appeared in litigation.
I think of “early” as a shorthand for “earliest appropriate time.”
To be ready to settle at the earliest appropriate time, lawyers should diligently and promptly learn the parties’ interests and the critical facts, reasonably anticipate the likely decision if the case would go to trial, and consider possible agreements that might satisfy both parties’ interests.
Lawyers need to do some factual investigation before they are ready to negotiate. But they don’t need to complete all the discovery required for trial.
Lawyers often get trapped in what I call a “prison of fear” causing them to procrastinate about settlement for many understandable reasons.
They often can, however, escape from this prison if they try.
The Courts Can Help
It really helps when the courts support and encourage planned early dispute resolution.
Toward that end, the American College of Trial Lawyers Task Force on Discovery and Civil Justice and the Institute for the Advancement of the American Legal System recently released a report including 24 principles to “lay the foundation for achieving fundamental improvement of our system to help ensure that no one is shut out due to a lengthy and expensive process.”
The report is entitled, “Reforming Our Civil Justice System: A Report on Progress & Promise.”
Many of the principles in the report emphasize the importance of planned early dispute resolution, including the following.
Principle 4: Unless requested earlier by any party, a Case Management Conference should be held as soon as practicable after the appearance of all parties.
Principle 6: Cooperation and communication between counsel is critical to the speedy, effective, and inexpensive resolution of disputes in our civil justice system. Counsel should be required to confer and communicate early in order to resolve potential disputes, and the court should be available to resolve disputes in a timely manner, if necessary.
Principle 7: All issues to be tried should be identified early.
Principle 8: When appropriate, the court should raise the possibility of mediation or other form of alternative dispute resolution early in the case. The court should have the discretion to order mediation, other form of dispute resolution, or other form of streamlined procedures at the appropriate time, unless all parties agree otherwise.
Principle 15: Shortly after the commencement of litigation, each party should produce all known and reasonably available non-privileged, non-work-product documents and things that support or contradict specifically pleaded factual allegations. . . .
Principle 17: There should be early disclosure of prospective trial witnesses.
Helping Parties Deal with Problems in the First Instance
Of course, the parties themselves can prevent some problems and resolve them when they do arise.
In particular, we published a practical user guide for business parties (and lawyers), which I co-authored with Kurt L. Dettman and Catherine E. Shanks. This guide was co-sponsored by AAA, CPR, and JAMS.
The Section has appointed a new task force to continue promoting these ideas.
Lawyers’ Role
Lawyers play an important gatekeeping role, shepherding clients in various directions as they handle disputes.
As I show in my book (and related articles), lawyers who use planned early dispute resolution techniques can get good results for clients and make a good living.
Lawyers often negotiate resolutions without using neutral DR professionals.
Of course, an important lawyering skill is knowing when and how to engage neutrals to advance their cases.
The Big Picture
Courts, parties, and lawyers all can take initiative to plan for early dispute resolution so that it is productive and not a waste of time.
They are most likely to be successful when they are all moving in the same direction.
But even when not everyone is initially “on board,” even one or two of these groups can make a big contribution to good, early DR.
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