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That mediation was a total waste of time,” say the attorneys and clients as they leave the mediator’s office. “Four hours of talking and nothing to show for it.” Such comments often reflect the feeling of parties who entered into mediation in good faith hoping to finally settle their dispute with their opponent. It soon became apparent, however, that final resolution was unattainable as the parties recognized that their perceptions of the merits of the case varied greatly. They may have differed significantly on liability, causation or damages. Faced with this impasse, parties are often inclined to give up on the mediation and stalk out of the room in despair. This reaction, however, may cause parties to miss the opportunity to benefit from the mediation process and the mediator’s assistance even when it is apparent that the main objective of the mediation has not been realized. All parties to a dispute recognize that litigation, by its very nature, is expensive, aggravating and protracted and that these difficulties should be minimized to the extent possible. What they often fail to appreciate, however, is that the mediation venue and the services of an experienced mediator provide a unique opportunity to resolve many preliminary issues facing the parties, thereby expediting the process and reducing the monetary and psychological cost associated with litigation. Lawyers, litigants and mediators should, therefore, never allow the parties to part, even when the mediation has not resulted in settlement, unless they have, at the very least, considered the possibility of further utilizing the mediation process into which they entered voluntarily. They should recognize that they still have at their disposal a vehicle which may allow them, by agreement, to establish a framework that will benefit all parties in the upcoming conflict. Consider some of the following examples of issues which may be addressed following an “unsuccessful” mediation: Who are the proper defendants? For example, a medical malpractice/products liability action may have been commenced initially against a hospital, physicians, residents, interns, nurses and medical device manufacturers. During the mediation, it may have become apparent that certain of the defendants are not liable or are only tangentially related to the matter and should be dismissed from the case. Frank discussion concerning the involvement of certain parties may result in an agreement to drop some of the named defendants, which will result in savings for all parties in terms of both discovery and expense. What claims are still viable? Often a single action may be started alleging a multiplicity of legal theories. These may include claims of breach of contract, a variety of alleged negligent actions (e.g., negligent hiring, training, maintenance of equipment, establishment of proper protocols, etc.), lack of informed consent, fraud, bad faith and a host of others. The mediation process may have led the parties to realize that certain of the claims or legal theories are no longer viable or worth pursuing. With the assistance of the mediator, the case may be streamlined by eliminating claims that are no longer factually or legally relevant, or which will be more of a distraction during the actual trial of the case. What damages may be pled and proven? In an age of statutory and insurance complexity, parties are often unclear as to what damages may be claimed, including such issues as what governmental or insurance liens may be included within the damages sought by the plaintiff and whether reference to these expenses may be made during the trial, even if they may not be included within an award of damages. The parties can explore these issues at the mediation and reach an understanding that will avoid controversy and uncertainty long before trial is to commence. Settling Discovery Issues Unquestionably, one of the major complaints heard from clients concerning litigation has been the expense and extent of discovery, including excessive demands for production of documents and numerous extensive depositions. Once the parties recognize that settlement is no longer currently available and facing the tribulations of discovery, parties at a mediation should be prepared to consider, with the aid of a mediator experienced in litigation, agreements that will lessen the pain engendered by discovery. For example, the parties may discuss which documents are still necessary and which need not be produced. A timetable and process for such production can be established. Where and when documents will be available for review can be determined. Decisions, even if only preliminary ones, can be made as to the nature of documents requiring reproduction and those requiring only review. If privilege is claimed with respect to certain documents, timing and procedures may be agreed upon that will allow for the production of appropriate privilege logs and an understanding as to how and when disagreements with respect to disclosure of their contents may be decided. Similarly, the parties may consider, with the aid of the mediator, how many additional depositions must still be taken; what proposed depositions can be avoided; who are the individuals still to be deposed; who are the corporate designees; when and where will depositions be scheduled; can the parties agree on limitations with respect to both the number and length of depositions; will experts for all parties appear live or via videotape. What agreements can be made with respect to the exhibits to be produced at the adjudicatory hearing? Can the parties agree as to their authentication, that they are fair and accurate representations of what they purport to be and that they are otherwise admissible. What agreements can be reached with respect to summaries or compilations of statistics or other data? Parties often have difficulty reaching an agreement on such issues when negotiating them directly. At the same time they may be loathe to take them to court for rulings before a judge who may not have had the opportunity to become fully conversant with the case and implications of the issues presented. The mediator, who by this time is fully familiar with the matter, however, is uniquely qualified and positioned to assist the parties in reaching reasonable solutions, acceptable to all, with respect to these preliminary matters. Deciding on the forum Finally, one of the most important matters that can be explored in the presence of the mediator is whether the parties wish to continue on with a jury trial or, perhaps, proceed with a bench trial or resort to an alternative such as arbitration. Circumstances may suggest, for example, that arbitration with certain attendant characteristics such as finality, speed, informality, relaxed rules of evidence, reduced cost (in most cases) and confidentiality will better serve the interests of all of the parties. Similarly, the parties may agree to limit their exposure by setting high and low limitations on awards that may be entered by a court or an arbitrator. If arbitration is to be employed, the parties may also consider a host of issues that will form the framework of the arbitration, such as whether and/or which rules of evidence will be applied, whether prior rulings of a court will be binding upon later issues confronting the arbitrator, and whether delay damages and pre-verdict interest may be awarded. The many issues which should be considered when agreeing on arbitration are not, of course, the focus of this article. To the extent that the parties have agreed on arbitration, however, the impartial mediator may help them fashion a procedure that will commend itself to all parties. Summary In short, the parties still have available to them the assistance and input of the mediator in whom they, presumably, still trust and who already has great familiarity with the matter. Even though a mediation may not have resulted in a final resolution of the dispute, it still may assist the parties in creating a framework within which the matter may be resolved in the most cost-effective and painless manner for all. Admittedly, the parties may not be in a position to address many of the outstanding preliminary issues at the conclusion of the first mediation meeting at which they failed to reach a final resolution. But they can, even as they are parting, set a time and an agenda for a later meeting with the mediator at which these issues may be considered. If the parties are open to such an approach, the mediator, by bringing into play those factors that make mediation so effective a tool, can often assist the parties in resolving many of the preliminary skirmishes which precede the all-out war represented by the trial. And strangely enough, it is often at those very mediation sessions at which procedures are being developed and cooperative initiatives are proposed, that the parties eventually do settle their dispute in its entirety. ABRAHAM J. GAFNI, a retired judge, is a mediator with ADR Options Inc. and a professor of law at Villanova University School of Law.

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