I recently had another lawyer tell me that it was impossible to have a mediation within 30 days. Heck, I was hoping to have the mediation within two weeks.

Of course, the schedules of the parties and the mediator may make scheduling a mediation within a short time frame impossible.

Scheduling concerns, however, were not all this lawyer was concerned about. He wanted to prepare a mediation statement that sounded like a brief to be filed in a United States Court of Appeals. The preparation process he envisioned sounded like the all-consuming process of preparing for a trial (something that only lawyers who have done it really understand).

This approach strikes me as a bit contrary to the fundamental nature of mediation, which is supposed to be a relatively fast and efficient means of resolving disputes. Mediation, if successful, is supposed to save clients time and money.

I am not suggesting that lawyers should avoid preparing for mediation. Far from it. However, I am suggesting that lawyers should be efficient in how they prepare. If the parties have been in litigation for a while, they should already have the basic information needed to discuss settlement. In fact, it is a fairly rare case in which the basic information and issues are not known quite early in the process.

If the parties do not have the information necessary, they should consider using the mediation process first to establish a process for exchanging that information. Although I have seen this work and have written about it before, it never ceases to amaze me how how so many lawyers seem to view mediation as a "one shot" meeting at which the case either settles or does not. Sometimes, effective mediation needs to be a process.

Turning back to the basic subject, mediation is not a trial. It is also not an appellate argument. The mediator will need the parties to lay out the basic facts succinctly, probably in a written mediation statement. If there are fundamental legal issues, the mediation statement may need to address them. Frankly, in most cases (those where there does not need to be a further exchange of information) information), the lawyers should already have done most of the background work necessary to prepare the mediation statement. The mediation statement is meant to be informative; it does not need to be a magnum opus or a work of art.

Much has been written recently about how lawyers have turned U.S. arbitration proceedings into mirror images of bench trials in the litigation system, replete with full fledged discovery, motions to compel, and the obligatory motion for summary judgment (whether warranted or not). This, critics argue, has at least undermined the "faster and cheaper" part of the "faster, cheaper, better" mantra of arbitration proponents. At least based on anecdotal comments, some companies are reconsidering using arbitration in their dispute resolution provisions for just such concerns.

It would be a shame if lawyers are causing similar considerations to creep into mediation. In the "old days," the trial was the main event in civil litigation. Today, mediation is often effectively the main event, as few parties want to bear the expense and risk of going to trial. That does not mean that going to mediation ought to be approached as going to trial. The parties need to get the necessary information to the mediator as efficiently as possible and then proceed.

It is also worth noting that clients, particularly sophisticated clients, can usually tell when a lawyer is trying to resolve a case efficiently and when a lawyer is going through unnecessary motions, perhaps (charitably) out of a quest for perfection or because "that is just how it has always been done," or perhaps (not so charitably) out of a desire to bill hours before a case settles. Regardless, this is rarely a basis for a long-term relationship.

My advice is simple: Don't turn mediation into a trial or appellate argument. Prepare well, and have the information necessary to address the issues and negotiate. But please remember mediation is supposed to be an efficient means of reaching a settlement.
 


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