Timing is Everything
As with most things in life, timing can be everything. The best-laid plans of mice and men will not succeed if the timing is wrong. Being at the right place but at the wrong time just does not work. So goes mediation.
I frequently hear from counsel on both sides, and often at the same mediation, that the time for the mediation was not right. They are not talking about the hour. The issue was with the date. Namely, the mediation was scheduled too soon, or insufficient information has been exchanged to mediate meaningfully. Why is this happening?
How Mediation is Scheduled
Mediation is either scheduled voluntarily by the parties or ordered by the Court.
When scheduled voluntarily, the parties are in control of picking a date. Typically when this is done, the parties are motivated to explore settlement and prepare accordingly.
Conversely, when the Court orders mediation, the Court establishes a deadline for mediation. Normally, the deadline for mediation is set forth in a case management or trial order.
The Problem with Mediation Orders
The deadline for mediation is usually a certain amount of days after the date of the Court order. Many Court ordered mediations are scheduled before discovery is complete, and experts are disclosed. As a result, the static deadline for mediation does not consider the parties' ability to mediate effectively.
The Timing is Wrong
The number one complaint heard at mediation is that a party does not have enough information to evaluate the case. This is a consequence of discovery not being complete and experts not being disclosed.
Without this critical information, the parties lack a meaningful ability to evaluate and complete a risk analysis. This is because the parties lack an understanding of liability and/or damages for the case.
Without information, parties are often unwilling to make decisions. Parties need data, options, and reasons to settle. When parties lack data and options, they are either not engaged or are left guessing and posturing their way through mediation.
Guessing and posturing during mediation is not an effective way to mediate or resolve cases. This is where you see arbitrary offers coupled with unsupported and undocumented positions. The other party is just expected to accept your position without any backup. A take it or leave it proposition. There can be no discussion and, consequently, no negotiation.
The Solution for Voluntary Mediation
The parties should schedule their mediation when the timing is right. The timing is right for a meaningful mediation when the parties have the necessary information to evaluate a case to explore settlement options properly.
When the parties voluntarily schedule a mediation, they should work closely together to ensure that all necessary information is exchanged so they both can make informed decisions. This is the easier option and one that the parties have control over.
The Solution for Court-Ordered Mediation
On the other hand, when the mediation is Court ordered, the matter is a bit more challenging. In those instances where mediation is to take place before discovery is complete or experts are disclosed, the parties have two choices.
The first option is for the parties to comply with the Court order and attend the mediation without exchanging discovery or expert disclosures. This will invariably lead to a "check the box" mediation that can be a short and frustrating exercise in futility.
The second option is for the parties to comply with the Court order and attend the mediation, but first, work closely with each other to ensure the needed information to evaluate the case is exchanged before mediation. This proactive preparation is the best solution for having an effective and meaningful mediation.
Some lawyers will argue that they do not have the time, resources, or desire to exchange discovery or expert disclosures earlier than required in the case management or trial order.
I certainly agree that this is not an ideal solution for trial lawyers. However, if you intend to settle the case, you will do what is needed to have an effective mediation.
That might mean getting out of your comfort zone to agree with your counterpart on a mutual exchange of discovery and experts before the ordered deadline. Remember, the deadline is just that, a deadline. Nothing prevents you from agreeing to do it earlier if you intend to genuinely explore settlement options at mediation.
Another option for trial lawyers with an existing case management or trial order is to file a motion with the Court to modify the deadline for mediation to come after the completion of discovery and disclosure of experts. The stated goal would be to have a more effective and meaningful mediation, and more information from discovery and experts is needed for that purpose.
Proposal for Case Management and Trial Orders
A better solution for all concerned is to have a uniform state-wide case management or trial order that schedules mediation after the conclusion of discovery and expert disclosures.
This is a more difficult task requiring the Courts and lawyers alike to agree to such a change. As it stands, there is no uniform case management or trial order in Florida. Sometimes, each circuit and even judges in the same circuit utilize different orders.
A uniform case management and trial order would ensure that the parties to mediation can do so effectively when they are armed with the necessary information to evaluate their case for settlement. Such an order could simply include a deadline that is after the completion of discovery and expert disclosures unless earlier agreed to by the parties or ordered by the Court. This is a simple fix that should satisfy all parties and contingencies.
Scheduling mediation to be more effective and meaningful is all about timing. The time has to be right. The right time is when the parties have the necessary information to evaluate their case and explore settlement options. More often than not, this will require the completion of discovery and the disclosure of experts.
When engaging in voluntary mediation, the parties should work closely to ensure that the needed information to evaluate the case is exchanged before mediation.
In the context of a Court ordered mediation, when the mediation is to take place before discovery and expert disclosures, the parties will need to voluntarily exchange this information in advance of the mediation. If this is not desirable or possible, the parties can file a motion with the Court to modify the case management or trial order so that mediation occurs after the discovery and expert disclosure deadlines.
The best overall and long-term solution is to have a state-wide uniform case management or trial order that has a mediation deadline after the completion of discovery and expert disclosures. This is a practical and needed solution for effective and meaningful mediation.
Less conflict, more resolution.
Miami Florida Mediator