Case Study 5

Discovery Options

It is axiomatic (if not rational) that a party should agree to Settle a case once they have SUFFICIENT INFORMATION to make a REASONED DECISION.

The Lawyer's standard approach to satisfying the "Sufficient Information" requirement is to follow the Pre-Trial Discovery roadmap. Managing the cost of Pre-Trial Discovery is often a challenge. The emerging topic of "proportionality" is gaining acceptance as one strategy to managing discovery costs.

But Mediation offers even more options and flexibility to obtain the information necessary for parties to resolve their disputes. The following examples illustrate how the Mediation format can be used to achieve the "Sufficient Information" threshold.

Obtaining information from Experts.

In Case Study 7, Plaintiff's Expert submitted a Draft Report in advance of the Mediation Hearing, to be used "For Mediation Purposes Only". The Expert participated by conference call during the Hearing, gave an overview of his investigation to date, and answered questions from Defendant's counsel. This exchange provided Plaintiff with an appreciation of the additional effort required by the Expert before a Final Report would issue. The Defendant, although not persuaded by the opinion, nonetheless acknowledged the gravitas of the Expert, and the considered the risk of relying on its internal professional staff to counter Plaintiff's expert.

Arrangements were made in advance to electronically display job site photographs and engineering drawings at the Hearing so the structural engineer, at a remote location could participate in a question and answer format with the assembled project teams and principals. The open exchange of information could not have been achieved in a formal deposition format.

Jointly retained experts provide their work product under the restriction of "For Mediation Purposes Only". The information is intended to be fact based, but may stop short of opinion. The objective is to provide the parties with objective, unbiased information that forms a foundation for negotiation and settlement.

Where electronically stored information (EIS) presents a potential obstacle to negotiation in Mediation, the parties can agree on the necessary EIS, and jointly retain an appropriate independent expert to investigate and deliver the results. The parties share the cost of the jointly retained expert.

Obtaining Information from Non-Parties

Information from a non-party provided in an Affidavit format, signed under Oath and distributed in advance of the Hearing. The non-party made available for conference call during the Hearing. Ground rules establish that in the event the matter is not resolved at Mediation, the Affidavit may not be introduced as evidence, but may be used for impeachment. This is a quick substitute for a limited scope deposition from a non-party.

Telephone calls to non-parties during the Hearing to verify or clarify objective information can be effective in resolving details that are necessary to get negotiations back on track. Calls to verify transactions with vendors, information from accountants about information in financial reports or tax returns, etc. The Mediator must assert the initiative to obtain the concurrence of the party that holds the privileged relationship with the non-party and manage the conversation to obtain the information sought.

Obtaining Information from Parties

Document exchange between parties in commercial disputes can follow Discovery Protocols, where each party voluntarily provides the necessary information. The Mediator can assist in refining the scope of necessary documents, and dealing with schedule and format. The Mediator can deal with the gaps in information and suggest strategies to verify voluntarily submitted documents. It may be important for some documents to be delivered using the formality of the Court Rules, including attestation.

In many situations project documents are in the possession of both parties, but lack the context that comes with the formal deposition of parties that were involved. In a typical two-stage Mediation, the first session is reserved for a conference room setting where the staff from both sides involved in the project engage in a structured question and answer format. Although the information is "For Mediation Purposes Only", if the Mediation is not successful, parties have the benefit of focusing further formal discovery.