After many years as a U.S. District Court judge and now with experience as a private mediator, I thought it might be helpful to provide some tips to counsel engaging in mediations as COVID-19 remote practices become unnecessary. Most of this advice applies generally, but some reflect our experience with remote technologies during the virus shutdown. All of this applies whether you are counsel for plaintiffs or defendants, and whether the mediation is before a U.S. district judge, magistrate judge or private mediator.
- Educate the mediator before the mediation. Mediations simply will not be successful unless the mediator knows almost as much about the case as you do. Mediators cannot be convincing unless they have a deep knowledge of the strengths and weaknesses of both sides. Most mediators require confidential summaries from counsel before the session, and those should be very detailed, with references to the docket. (Remember that we all have easy access to state and federal court dockets through CMECF and Westlaw.) If there has been a summary judgment or class certification motion filed (with responses), they can be particularly helpful because the filings for and against the motion will include key discovery materials. But even with those filings, it is helpful to include portions of additional discovery materials that are important for the mediator. Remember, the mediators will not have access to discovery unless those materials have been part of a court filing or you provide it to them. Sometimes even complete deposition transcripts are important to send to the mediator (with exhibits), or at least excerpts. It is also important to provide the expert reports (along with CVs), especially if they have to do with damages or a critical liability issue. In a contract dispute provide binders with the relevant documents. Our experiences with remote mediations during the pandemic improved the quality of the premediation filings as they were even more important for that type of mediation.
- Enter into a written mediation agreement before the session. The most important parts of the agreement are that the sessions and materials considered are confidential, and the positions of counsel will not be used as admissions if the mediation is unsuccessful. Also, the compensation provisions for the mediator (and the responsibility for sharing in the mediator’s costs) should be clearly set out. The agreement should state whether the mediation will be remote or in person, or a hybrid of the two, and detail what should be in the premediation fillings.
- Pick a mediator who has credibility with counsel and the parties. You are really counting on (and paying for at times) the experience and judgment of a mediator who has worked in these complicated areas and has seen similar cases tried, or at least litigated them. The power of the mediator’s persuasion is only strong if the mediator is very experienced and has considerable stature in the legal community. That is especially true in convincing a client to change a position. Contact counsel who have had experience with that mediator before the selection. Although there were not many mediations sessions right after the virus started, many were held after counsel determined how to use the remote technologies such as Zoom, Webex and Microsoft Teams.
- Trust the mediators when they say the summaries will be confidential. Most lawyers are reluctant to believe that, but all mediators I have worked with honor that pledge. There may be some materials you still want to hold back, but that should only be, for example, your final position for settlement. It is extremely helpful to mediators that they understand what you perceive as the strengths and weaknesses of your case. It shortens up the process to disclose them, and it makes the likelihood of resolving the matter much better. The problem also seems to be that counsel do not want to disclose the weaknesses of their positions if a copy of the summary is going to the client (as it should). But be honest also with the client ahead of time, it will make the likelihood of success much better. If you are still reluctant to put in writing the weak aspects of your case, ask the mediator to schedule telephone conferences separately with each side before the session so that your comments are not also made to opposing counsel.
- Pick a point in the litigation for mediation that is most likely to yield a resolution of the case. There are typically two junctures when mediations are most successful: at the beginning of the case, or after considerable discovery has occurred. The former works when one of the goals is to avoid considerable counsel fees and much is already known about the case, and the latter when you need discovery to see, for example, how the key witnesses held up in their depositions, or when a threshold legal issue needed to be resolved by the court in order to progress to settlement.
- Have the mediation session in person, with all the people that need to approve any proposals in the room. I know after the virtual world of the past year and a half that there are some mediators (and counsel) who believe that virtual sessions (with “breakout rooms”) are much easier to arrange and schedule and are just as good as being there in person. I do not believe remote sessions are as productive as in-person ones because for most mediations to be successful, you need the pressure of in-person sessions that will not conclude until there is a resolution or at least every effort has been exhausted. Many times we have seen settlements that we could not have predicted in the morning occur at the end of the day.
- Be honest with the mediator during the session. We all know that there will be lines you will not cross simply to resolve the matter. But be really honest about that. You do not have to concede your final positions right away, but do not set walls early on that will not help the discussion.
- Have the lawyers who will actually try the case at the session. We are all busy, but it is only the seasoned lawyer who will take the case to trial that has the real credibility with the mediator, the other side and the client. Often the client will only listen to that lawyer, and it is that lawyer who is aware of the weaknesses of the case and will be stuck with them if it goes to trial. Having the session in person with that lawyer and the client helps to ensure progress.
- Do not conclude the session until all parts of the resolution are clear. You may need to compose a detailed document to memorialize all the parts of the agreement after the session, but do not make the mistake of leaving “loose ends.” The momentum for settlement typically ends when you go home at the end of the day, and we have all seen agreements fall apart later because of small issues. Even if you must hand write or put on the record the settlement, cover the details of it before you conclude the session.
- Mediations are now more important than ever. Because of the court closings during the pandemic the backlog of criminal and civil cases grew dramatically. It will be more difficult than ever to have a civil jury trial scheduled as most judges will be addressing criminal cases, especially those with speedy trial issues. Mediations will be encouraged by all courts to help address the civil backlog and free up the judges for criminal trials and emergency civil proceedings such as preliminary injunctions.
Christopher F. Droney recently retired as a U.S. Court of Appeals for the Second Circuit judge. Before that, he was a U.S. District Court judge for the District of Connecticut and U.S. attorney. He is now a partner at Day Pitney.