Thomas Dye, with Cozen O’Connor in West Palm Beach.

Florida courts generally require mediation prior to a specified time before trial. Mediation is usually conducted near the close of discovery or shortly thereafter. The benefit of this timing is that most of the key facts are known to the parties. The parties have had ample time to digest documents produced by all parties and from independent sources. Parties have responded to interrogatories, witnesses have been deposed and other potential evidence has been reviewed enabling an informed evaluation of the case. Almost as important, the parties have been sensitized to the costs of litigation including attorney fees and lost employee time opportunity costs. Witnesses have experienced the anxiety of testifying and the emotional toll the process often takes on participants.

If mediation is conducted late in the case the parties also have likely been educated through questioning in depositions, review of documents and through opposing arguments presented in memoranda or court hearings, that their version of the events can be persuasively challenged. Mediation after discovery also has the benefit of time pressure. An expensive trial is looming, coupled with judgment day with possible damage to personal or business reputation, loss of individual property or rights, or a possible large adverse verdict. It is no wonder mediation shortly before trial often results in compromise and settlement.

However, many clients are not satisfied with the expense incurred in litigation to reach this point. They wonder whether the discovery process can be minimized through early mediation. Without opportunity for adequate assessment however, the chance of resolution in early mediation is often slim. Parties often hope to uncover “smoking gun” evidence through discovery. Emotions, ego, retention of capital as long as possible by defendants, and a number of other motivations may prolong litigation. Early mediation often proves to be a waste of time and expense. Statutory attorney fee provisions or bad faith laws may also create disincentives, even on the plaintiff’s side to early case resolution.

Nevertheless, there are many circumstances where early mediation may work. For instance, in cases where there has been a preliminary injunction hearing, much of the crucial evidence and argument on both sides has aired and the court has given an indication of how it is leaning on many issues. Early mediation may also prove successful when the parties have significant knowledge of facts coupled with an incentive to preserve the relationship between the parties, for instance in the case of a franchisor/franchisee, supplier/customer or licensor/licensee relationship. There certainly are many other circumstances in which early mediation may result in resolution. However, these situations remain the exception. Experience with a particular type of case can educate practitioners as to the factors that might render early mediation successful in their specific area of practice.

Negotiation experts wouldn’t be surprised to learn that without adequate assessment and persuasion, moving into the bargaining stage too soon is not likely to result in resolution. Scholars at the Harvard Negotiation Project have analyzed the need for the stages of negotiation to proceed in succession including assessment, persuasion, and bargaining. They counsel against entering the bargaining stage too soon without doing adequate assessment and persuasion.

Proponents of a new nontraditional form of mediation argue that there may be a better way to conduct early mediation that allows for both adequate assessment and persuasion rather than heading straight into bargaining. They suggest that through “early intervention” mediation parties can obtain and exchange information in a streamlined, cost efficient manner before entering into bargaining of traditional mediation. The mediator in this model leads the parties through a process of information exchange and seeks to resolve any conflicts by agreement. The mediator is not a decision maker and confidential ex-parte conversations are encouraged. Parties using this method report that cases come together sooner with much less cost. The ultimate issues are quickly crystalized.

The early intervention mediator assists the parties in identifying the information that is needed and helps create a road map and deadlines for exchange. Multiple mediation conferences can be conducted in person or by phone in the hopes that enough information has been exchanged to allow for early bargaining and resolution. There needs to be a level of cooperation between counsel to make progress in this effort, but the process itself may prove to dispel some of the emotions and distrust parties bring to the litigation. Should this process not prove effective the traditional discovery process is still available.

Thomas A. Dye is a member with Cozen O’Connor’s West Palm Beach office. He can be reached at tdye@cozen.com.