by Andrew Flake

More than ever, with case dockets overloaded, our trial judges welcome counsel’s willingness to mediate. Indeed, much more frequently, I see them ordering parties to mediate, and doing so earlier in the litigation process, as part of a standing order or a regular practice.

Still, it remains counsel’s responsibility to consider the various ADR options, including mediation. I’d argue doing so, in virtually every dispute, is at least best practice for litigators, if not built in to our duties of thoroughness and preparation. Additionally, I’ve observed the best outcomes when counsel are invested in the process and have a hand in its timing.

What then are some ADR way-stations, places in their matters where counsel, considering options other than trial, have the chance to pause, regroup, assess, even encourage?

1. The initial conversation with the client: In discussion the various pathways litigation can take, counsel can review mediation, including when it makes the most sense, the conditions (e.g., understanding of the legal issues and facts) for its success, and the data on its effectiveness. Most sophisticated business clients will be familiar with mediation generally, but talking through the topic will help to bring out any conditioned views, biases, or unanswered questions that might be blocking their receptivity.
2. Scheduling discussion with opposing counsel: In federal court, and often now in state rules of civil procedure, an early discovery conference includes, as a required agenda item, the possibility of settlement. Rather than treating the item as an exercise in checking the box — the chance of settlement are “fair,” “good,” “possible after discovery,” — consider discussing specific timing and setting a date to mediate, along with what kind of mediator may be best.
3. Scheduling dialogue with the Court: Provisions like Fed. R. Civ. P. 1, encouraging and obligating the “just, speedy, and inexpensive” determination of all cases, can provide a good framework and rationale for the court to adjust case timing to permit mediation. That might be a date in the scheduling order, or it might even be a stay. See, e.g., Island Exterior Fabricators, LLC v. Priedemann Façade Lab GmbH, 2023 WL 1451623, at *2 (E.D.N.Y. Feb. 1, 2023) (“A limited stay clearly serves the interest of the Court by promoting judicial economy, as well as the interests of the parties and the public by allowing time to attempt an amicable resolution.”).
4. Case-information milestones: I’m a proponent of at least considering early dispute resolution, at the same time recognizing that there is a minimum of necessary clarity on issues and facts, including what is disputed, that set up a good mediation. Litigation is a process of gradual, and frequently expensive, revelation. Each stage brings new information: when the pleadings are joined; when a motion to dismiss or judgment on the pleadings has been decided; at each stage of discovery; after summary judgment; the pre-trial order and exhibit exchange. Each stage brings an opportunity to achieve a resolution more certain and favorable than trial — whether it is known to counsel or not.

On this last point, I encourage counsel to think of mediation as more of a process than an event. While we aspire to resolve a case early and at one sitting, the force of our case so compelling that all of the client’s objectives are met, the reality can be different. For example, what work can be done, through a mediator, prior to even sitting down in the plenary or in-person mediation session? An effective mediator can help guide counsel through an informal process of clarifying issues, thinking through the case, and even information exchange, that may produce a settlement before even a formal mediation.