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Late Stage Mediation

Mediation in the Late Stage of Litigation often provides a foundation of substantial pre-trail discovery and perhaps action on dispositive motions.  Unfortunately, the time saving and cost reduction strategies of the Pre-Litigation and Early Case Mediation are somewhat diminished.  Here are some of the significant features of Late Stage Mediation:

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  • Still less disruptive to existing Business Relationships than continuing to trial (especially important for internal shareholder or member disputes)

  • May be the last opportunity for Business Principals to retain active participation in Proceedings

  • Completed Discovery sheds light on uncertainties/risk for each side.

  • Still faster results than proceeding to Trial; avoid substantial costs associated with preparation for Trial.

  • Private, No Public Records of the Settlement

  • Confidentiality of Proceedings during Mediation

  • Easy to customize ADR Process such as:

    • PreMediation conference with parties prior to Hearing

    • Multi stage Hearings

    • BATNA analysis available as persuasive decision making tool

    • Consider Consent Order designating Mediator with joint role as Mediator, and if necessary, as single member Case Evaluator, with sanctions

The following documents are available to support Late Stage Mediation:

  • I have prepared an Outline and set of Instruction for conducting a Zoom video conference for Mediation.  Please download the document.

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Mediation Agreement

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  • My standard Mediation Agreement includes a suggestion that parties engage in what I describe as PreMediation, as a means to explore as many options and choices as possible in the design of the Mediation Process. I refer to this Best Practice as PreMediation-The Gateway to Extraordinary Results.

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  • If provided a Checklist for strategies and key issues in Mediation. This is a worthwhile compendium of many of the process issues I've encountered in my practice.  My objective is to make these available to counsel, and hopefully prompt a discussion on a better approach to successful settlement through Mediation.

  • My standard Mediation Agreement includes a suggestion that parties consider Mediation with a Med-Arb option.  I'm available to further discuss how Med-Arb can be an appropriate ADR process for your case.  I've provided a white paper to discuss the best way to navigate the Med-Arb process.

  • During the course of a Mediation Hearing, the Mediator will be engaging in caucus, or private discussions with one of the parties.  While this private discussion is going on, the other side is left with an open agenda.  This is often time for counsel to to review the progress on negotiations, and prepare for the next round of discussions or counter-offers.  To assist counsel with some organization for these gut checking discussions, I've provided both Instructions and forms for the BATNA exercise, the Best Alternative to a Negotiated Agreement.  This is the exercise to quantify all of the various pluses and minuses for each side, and come up with a way of comparing the current offer on the table to that party's possible outcome if the case proceeds to trial.  I encourage counsel to become familiar with this exercise, and introduce its use with the client early in the preparation for the mediation hearing. 

  • It's my recommendation that Counsel invest more effort in educating their client on the real cost of continuing the litigation, legal fees of course, but also the expenses of travel, deposition video or transcripts, and experts.  But don't overlook the cost to the client's organization, the time spent on document retrieval, preparation for depositions, the distraction of many staff from business operations, loosing focus on the future.  Work up these costs on a scale from the best case (least cost) to worst case (greatest cost).  Then plug these litigation costs into the BATNA exercise, and make your client think long and hard about what an acceptable settlement looks like.

Finally, please review the ADR References, organized by the following categories:

  • Auto Supplier Disputes

  • Construction Contract Disputes

  • Business Contract Disputes

  • Business Organization Disputes,including closely held and family businesses

  • Non-Compete, Breach of Confidentiality, Unfair Competition

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