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Would a Pre-Mediation Management Order improve success at mediation?

February 2, 2011

Litigation, and particularly complex litigation, has a structural advantage over mediation.  Rules.  Lots of rules. Ostensibly rules necessary to guide an otherwise disorderly process.  And, where the rules alone seem insufficient in litigation, lawyers and courts have been quick to adopt management orders in supplement to those rules to insure orderly process and preparation prior to utilizing court resources.

A mediator-collegue of mine, David Henry of Swartz-Campbell, LLC/Henry Potter Mediation, recently shared with me his idea of what I believe is a brilliant concept:  a mediation management order designed to guide mediating counsel to optimum success at mediation by setting forth the minimum requirements of pre-mediation activity usually necessary to success at mediation.

Without regard to the detailed substance of  Mr. Henry’s idea, currently being included in publication for a DRI business litigation program soon upcoming, the concept of a more-orderly pre-mediation structure seemed to me to have merit, if only to assist in guiding organization for better use of the mediation tool.

Some would say that we already have both mediation rules and local court orders of a similar nature regarding pre-mediation.  But many observe that the present mediation rules and supplementing court orders have been so watered down by appellate decision and the practicality of non-enforcement that other than setting a time for mediation, little seems to be left to any pre-mediation structure beyond what each attorney voluntarily wishes to try to accomplish.

Imagine if litigation were similarly left to such non-structure and volunteerism.  (Some might wish it t be so and suggest it is far too structured, etc.)  At the least, the court rules and orders have served to set minimum standards of what is expected by the Court of any attorney prior to their use of the court system.

It is certainly subject to debate and certainly as to such an order’s content, but wouldn’t such an order, if followed in pre-mediation preparation by the parties, provide better groundwork for an orderly and informed mediation than no structure at all?

Something to think about.

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