Having recently completed a manual about the ADR process, there are three features of mediation that jump out at me as noteworthy, but are often overlooked by the practitioner. First are the multiple opportunities for the alert attorney to engage opposing counsel in a mediation of a pending court case without seeming too eager to mediate. Second is the value to counsel of participating in one or more pre-mediation conference calls, whether joint or individual, with the mediator. And third is the necessity for counsel to keep up with the law on the enforcement of mediated agreements.
Starting with the multiple opportunities for scheduling your mediation, most state and federal courts now have some version of an early intervention event, shortly after the issues are joined, when mediation can, and in some jurisdictions must, be discussed with the court. These are mandatory events when counsel can freely evaluate and choose mediation, under the watchful eye of the court, and without the pressure of having to initiate the conversation cold with an adversary.
Often more appealing, due to the need for discovery and motions practice, is the opportunity to engage opposing counsel in mediation at the final pre-trial conference or even in the days just before trial. Most court rules, including those in Massachusetts, require counsel to report on the status of settlement discussions at the final pre-trial conference. This allows mediation to readily enter the picture and the trial date to be adjusted accordingly. On the other hand, persuading a judge to continue a trial at the last minute to permit mediation takes a skillful appeal to judicial economy and, to succeed, should be accompanied by a joint commitment to a particular mediator and date so the trial can be appropriately moved ahead.
The value to counsel of one or more pre-mediation conference calls with the mediator cannot be overstated. While Judge Lynn Duryee’s recent JAMS blog on the value of the pre-mediation brief is required reading, the ability to engage the mediator in a discussion of issues in the brief as well as to answer the mediator’s questions is invaluable. Many mediators will hold a joint pre-mediation conference call, and some will make the content quite mechanical (names of attending parties, time constraints, etc.). This is no reason to miss emphasizing points made in the brief. Of particular value is the opportunity provided by some mediators for a follow-up private conference call. The mediator will usually have a specific question or two based on the brief or on the joint conference call, but again, counsel can use this opportunity to stress particular points.
Counsel is wise to keep up with the fact patterns of new appellate decisions because in Massachusetts, and generally, the basic principles of contract law apply to the enforcement of mediated agreements. Recent decisions, just in June 2014, enforcing or remanding mediation agreements include CEATS, Inc. v. Continental Airlines, Inc. (mediated agreement enforced despite mediator’s failure of disclosure), and Patel v. Patel (mediated agreement remanded on issues of authority to sign and ambiguity). Additional ways to keep current include the ADR Cases section of Dispute Resolution Magazine published quarterly by the American Bar Association and the Dispute Resolution Alert published quarterly by JAMS.