by Andrew Flake

We take for granted that mediation is an available option for our cases. Mediation, at least the concept of a trained neutral retained to work with the parties to bridge differences and resolve disputes outside of litigation, is a comfortable concept for most litigators. But are we too comfortable with the concept of mediation, and specifically, do we take for granted the power and flexibility of the process for us?

I participated recently in a discussion, focused on international disputes, about the Singapore Convention, an international treaty focused on promoting enforcement of mediated agreement.

Surprising for me to hear, from one of the members of the group that helped draft the convention, was how uncomfortable the concept of mediation is for lawyers in not a few, but in many jurisdictions around the world. It is far less commonly used, and in some cases, subject to misconceptions about the very concept of neutrality.

Surprising to hear, yes — but I then I considered that even here, in the U.S., it took decades for mediation to gain acceptance. And even today, are we where we need to be? Are there still challenges to how we mediate?

I would suggest there are, and that a considerable one is an overly rigid view of what mediation looks like (parties arriving in a conference room having never discussed settlement before), and when in occurs (after hard-fought discovery, close to trial, and perhaps only when ordered).

The heightened risk and expense of trial can certainly prod resolution, but the reality is that is virtually every case, there are substantial cost-savings to be had, and true win-win results, in a mediation that occurs far closer to a case’s outset.

Early Dispute Resolution, or EDR, is both a philosophy and a practice, emerging slowly but yielding very effective results, that challenges these rigid views. The EDR Institute, whose training I attended and protocols I will often suggest and use, has a more formal framework and some excellent resources: https://edrinstitute.org/

In its simplest form, though, EDR means the very early use of ADR.

Even if your client or your opposing counsel is not ready for more its more structured use, at least raising the topic of mediation with them at the earliest possible point — even if it is only to ask what reasonably available information would be sufficient, if exchanged, to get the parties talking realistically about settlement — has considerable upside for you.

And nothing says the parties cannot get a mediator apprised of the issues early on and well before scheduling an in-person session, even if they may not be ready to discuss specific proposals or negotiate economic terms.

Provide her a scope for assistance, for example, defining and ranking the importance of issues; helping the parties understand what needs to be done to promote settlement; and critically, in lieu of expensive formal discovery, working with an EDR neutral to identify what informal discovery or information might be needed to get to substantive discussion.

Let the mediator assist with bridging the information gap.

The alternative, particularly in commercial disputes with the parties bearing all or most of their own costs, could very well be getting to the same or a worse result, just much, much later in the process.

Indeed, many parties and counsel are just now seeing, in civil cases, the stark reality of what the post-Covid backlog means, not just for getting to trial, but in many cases, getting dispositive motions and even scheduling and discovery issues decided.

As mediation itself once was, EDR is new and, especially when we talk about early information exchange, runs counter to some conventional wisdom. But we need it, which means, as a start, thinking more broadly and creatively about mediation, thinking and talking about EDR.