At the ABA Dispute Resolution section spring conference, I attended a talk on mediating discovery disputes, a subject that has been of interest to me for a long time, but which should be more urgent given the difficulty traditional court processes and rules have in managing the continuing explosion of data. As Marian Riedy, who has written about the difficulties of retrieving electronic data, pointed out, the enormous costs of discovery of such data make it essential that parties cooperate in crafting agreements on the scope of discovery. Indeed, federal and state rules generally require efforts to resolve discovery issues by negotiation. That being the case, there would seem to be a place for mediators to step in and assist attorneys and parties having difficulty reaching negotiated solutions.
Even though the idea of bringing more mediation to resolving discovery disputes seems so obvious, it has not really taken hold. Why? Cost might be one reason, though it would seem that in many cases the cost of calling up a mediator should be a lot less than the cost of preparing briefs and affidavits in support and opposition to motions to compel.
Institutional resistance might be another reason, as courts are accustomed to referring discovery problems to magistrate judges or discovery masters for resolution, but have less experience or ability to refer discovery disputes to mediation. One of the panelists, Nancy Greenwald, discussed her experiences as a mediator with a Virginia state court program that has had success in assigning discovery disputes to mediation. That is an encouraging sign that some courts are overcoming institutional resistance.
And the adversarial culture that has existed for decades in both big and small document cases presents another reason for slow adoption of new techniques. Lawyers are trained to leave no stone unturned, and to prepare for every possible contingency at trial. Clients are sometimes reluctant to turn over sensitive data unless they are ordered to do so. Lawyers have accepted mediation as a tool to help settle cases after they have conducted sufficient discovery and motion practice, but have been slower to turn to mediated solutions in earlier stages of disputes.
There is also a big difference between resolving a dispute over the scope of discovery to which parties are entitled under the liberal standards of federal and state rules, and the discovery parties might need to evaluate a case for resolution. Ideally, mediation should promote informal exchanges of the information parties need to help them settle cases (including an opportunity to find potential smoking guns held by the other side), but that is in most cases still a lot less discovery than the parties are entitled to under the rules. In other words, mediation of discovery disputes ideally should lead to an informal exchange of a limited amount of information helpful to reaching a negotiated resolution of the dispute without protracted litigation. But if the mediation is focused on determining the scope of permissible discovery needed to prepare for a potential trial, then it might be biting off more than it should be chewing.
By Joe Markowitz