Are you effectively utilizing them as a part of the mediation process?
I’ve handled any number of mediations where the parties and counsel view prospects for settlement with optimism. In other cases — typically where the facts or the law are complex, the number of moving parts (parties, insurance coverage dispute, disagreement over damages) is high, or there are client control issues — counsel approach mediation with low hopes for settlement.
Lately, I’m seeing more and more pre-mediation conferences being held in complicated cases or cases where the prospects of settlement seem less likely.
Sometimes, the parties will agree to schedule two days for a mediation — with the first day set-aside for pre-mediation conferences. In other cases, I’ll schedule 1 to 2-hour meetings with each party a week or more before the main mediation session.
Sometimes these conferences are conducted on the telephone, but my preference is that they be conducted in person.
Most of the time when I’ve conducted pre-mediation conferences, it was at the suggestion of one of the parties. That’s typically the way it should come about, because, as the mediator, I rarely know enough about a case (in advance of actual mediation) to determine whether such meetings are advisable.
The bar’s professional rules of conduct prohibit ex parte contact with judges and/or arbitrators; however, mediation is a different matter. Since the pre-conference meeting is part of the mediation process, the same rules of confidentiality apply as they would to the main mediation session.
I’ve seen the pre-mediation conference benefit the overall process in a number of ways.
- It allows me, the mediator, to hit the ground running on the day of the mediation.
- It gives me a “heads up” on difficult and/or unusual issues that could negatively impact the mediation (IE: the emotional state of one or more parties, the need for an apology, or other specific needs of the parties).
- It gives the parties an opportunity to get comfortable with me as their mediator.
- It provides me with more information, and gives me an opportunity to build rapport with the parties.
- It ensures that the parties are able to fully communicate their information and issues to me during the mediation process.
Again, I’m not suggesting every case needs a pre-mediation conference — and it doesn’t take a lot of thought to identify which ones would benefit from such a meeting. Next time you’re going into a mediation where you think the circumstances warrant a pre-mediation conference, I’d certainly recommend you suggest it to your mediator. It could make all the difference in the outcome.