The benefits of a successful early mediation are obvious: Disputes can be resolved in a private, expeditious and economical fashion. Flexibility is another valued benefit mediation affords counsel—in selecting a neutral, scheduling the time, day and location of the mediation, and tailoring the mediation to address the specific issues involved in the dispute.

Why, then, is early mediation the path least taken—in lieu, oftentimes, of years of contentious litigation that can be debilitating in terms of time, cost and other resources? The answer, in sum, is that one or more of the parties is unable to take the leap of faith required for an early mediation; that is, negotiating in a meaningful fashion absent the knowledge that formal document disclosure and deposition testimony may bring. While the hesitation to engage in early mediation is understandable, the alternative is not necessarily a default to full discovery, but rather, reasonable efforts to design—with the assistance of a knowledgeable and experienced mediator—a protocol for an exchange of information and documentation in a time-controlled environment that will afford the parties the comfort level that they will not be negotiating "blindly" or in a vacuum.

What we are addressing in this article is the opposite approach and the means by which parties can jointly take that leap of faith and work towards an effective pre-suit or pre-discovery resolution of their dispute.

Selecting a Mediator

The process begins with the parties' selection of a mediator upon whom all sides agree. In making that choice, counsel should canvass colleagues to ensure that the mediator is known for having the right skill set to work with the parties pro-actively and assist them in designing a protocol by which necessary information/documentation can be identified and exchanged in a prompt and effective fashion. And, do not be hesitant to interview the mediator prior to making the final decision on his or her selection. Again, although early mediation is being undertaken in the absence of formal discovery, it is best accomplished with an appropriate exchange of information. Accordingly, the mediator needs to be an integral component of the process from the start—recognizing that the design of the protocol is going to be a negotiation in and of itself to be overseen and guided by the mediator. Critically, here, it is incumbent on the parties in their early sessions with the chosen mediator, not to press for what they may want on a "wish list" basis, but what they, in fact, minimally need to support their claims and defenses and engage in a purposeful evaluation of the case. The point of the exercise is not to prepare for trial, but to prepare for meaningful negotiations—knowing that not every issue will be the subject of the microscopic exploration that discovery (and its inevitable accompanying motion practice) would otherwise afford. It is incumbent upon the mediator, simultaneously, to keep the parties focused on the goal—a fruitful mediation—and not allow the exchange of information and documentation to overwhelm the process.

 Business vs. Litigious Approach to Dispute Resolution

Mediation provides a more business-like approach to dispute resolution than does litigation. The parties need to engage in critical analysis and assess what basic, foundational information is required in order to make an educated decision whether to settle early via mediation or embark upon full-blown litigation. And, part of that evaluation is internal—the parties need to realistically examine the costs and exposure the clients will otherwise face, not only in terms of dollars, but in terms of the commitment of personnel and other resources if the litigation proceeds. These factors must be part of the equation.

Once the scope of the pre-mediation protocol is brought into focus via the early discussions and negotiations overseen by the mediator, it should be memorialized by the mediator in writing and affirmed by the parties. The written protocol should be clear and detailed with specific deadlines understood to be binding, all of which, of course, should have the buy-in and commitment from the clients to ensure compliance.

In addition to setting forth the nature and timing on the exchange of information and documentation, the protocol needs to define a pre-mediation briefing schedule. It is very important that the parties have adequate time budgeted for pre-mediation statements and that they invest that time wisely. The parties' pre-mediation submissions are particularly important in the context of an early mediation because up until their exchange the parties may have been operating off notice pleadings and general denials or no pleadings at all if the matter is pre-suit. Thus, the parties' submissions should additionally reference the key documents and case law in support of their respective positions—again, bearing in mind that this exchange is the first opportunity the litigants have to detail their claims/defenses to one another.

The Stage Is Set

The stage will then be effectively set for the main event—the early mediation itself. The agreed-upon date for the mediation should be established at the time of the written protocol, with the understanding and agreement of all concerned—most importantly, the clients/decision-makers—that it is an absolute and firm obligation that cannot later take second place to any other business obligations. Those attending must also come with full authority to settle the matter. Thus, it is wise to identify in the protocol who will be in attendance on behalf of the clients—if not by name, then minimally, by title—to ensure that there are no disparities in the authority of the attendees.

Opening statements also take on additional weight in the context of an early mediation since this is presumably the first time the clients will be gauging the other side and its counsel. Remembering the old adage that "one does not get a second chance to make a first impression" is particularly apt in the realm of early mediation.

Also key to an effective early mediation is for the mediator to solicit, in advance, any terms or conditions that will be required components of a settlement agreement and release. It is better to have such requirements known and disclosed from the start than to have them raised at the eleventh hour when they might otherwise tip over a tenuous agreement in principle. Confidentiality and non-disparagement clauses, payment terms and the like should be part of the discussion. On that note, the parties should be prepared to memorialize an agreement upon the completion of a successful early mediation to avoid any after-the-fact buyer's regret, second thoughts or "devil in the details" arguments that might subsequently undermine what was achieved. In fact, it may be valuable for a party to attend with or have access to a form settlement agreement that then can be referenced and utilized as the foundation for the ultimate writing.

Final Thoughts

As is evident, the key to an effective early mediation is a commitment to the process. Absent that up-front recognition, an early mediation serves as nothing more than a weigh station on the litigation turnpike—easily passed with the employment of phrases such as "it's too early", "we don't have enough information" and the like. Early mediation is the path least taken because it is not the path of least resistance. Early mediation is a route that takes work, but it is one that can prove to be the most effective if the parties come fully committed to the process and prepared to take that leap of faith to meaningfully explore an early resolution of their dispute.

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Reprinted with permission from the November 25, 2019 issue of The New York Law Journal © 2019 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.

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Richard P. Byrne, Esq. has mediated issues in a wide variety of specialty areas, including commercial matters, employment discrimination claims, employment contract disputes, construction litigation, complex personal injury and property damage claims, together with insurance, reinsurance and risk transfer matters. In 2023, for the ninth year in a row, Mr. Byrne has earned the distinction of being voted a Top 3 Mediator in the United States in the National Law Journal "Best Of" survey.  Further, for the past ten years, he was ranked a Top 10 Mediator by the New York Law Journal "Best Of" survey.  He was also voted a Top 3 Mediator by the Corporate Counsel "Best Of" survey and was named a National Law Journal Alternative Dispute Resolution Champion, as part of a select group of only 46 Neutrals nationwide.  Mr. Byrne is available to arbitrate and mediate cases throughout the United States.

Hon. Peter B. Skelos' (Ret.) career includes 11 years spent as an Associate Justice of the Appellate Division of the New York State Supreme Court, Second Judicial Department. Judge Skelos' experience both on the bench and in private practice, gives him a broad range of knowledge in numerous areas of the law including construction litigation, professional liability and insurance coverage disputes. In 2023, for the eighth year in a row, Judge Skelos was voted a Top Ten Neutral in the New York Law Journal "Best Of" survey. He was also named a National Law Journal Alternative Dispute Resolution Champion, as part of a select group of only 46 nationwide. Judge Skelos is available to hear cases throughout the United States.  He is also Of Counsel to Forchelli Deegan Terrana LLP.

For any questions or comments, please contact Jacqueline I. Silvey, Esq. / NAM General Counsel, via email at [email protected] or direct dial telephone 212-404-4661