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Mediation Tip: Litigators, Use Mediation To Move Your Case!

March 23, 2012

This suggestion will not be popular with many mediators.   Like court reporters, scheduling is a large part of our practice.  And, instability of scheduling is costly.

But, noticing your case for mediation is one of  the litigator’s best available, and least used, strategies to push a case to more timely completion.

Many attorneys, on both sides of the aisle, complain about cases that never seem to capture the attention or interest of one side or the other, or both.  Or, in complex matters, sometimes some  activity seems without apparent direction and at a cost that seems out of proportion to the net gain in movement toward either resolution or trial.  And, in some matters, there simply seems to be more interest in “churning” the litigation rather than concluding the dispute.

Despite the interests or motives of attorneys in any particular action, every client wants resolution, one way or the other.  And, sooner rather than later.  And, in the end, the happy client means much more to any attorney than any one action!  (And, even if that doesn’t seem too important to you, you can bet it means a great deal to your boss.)

The key to this goal of an early outcome is having the power, unilaterally, to do something to move your case from the doldrums to some end point.  And, sooner rather than later.

One technique, common to most knowledgeable trial attorneys, is to “notice something”.

Discovery is popular.  Setting a deposition or sending something tangible to your opponent is something to show your client about your “movement” of their dispute.   And, by the way, it is very important to fully understanding and evaluating your position in any litigation.  But, it is also expensive.  And, too much expense particularly in liquidated damage cases can doom settlement.

Some will opt for setting a hearing.  Any opportunity to get the judge to notice that the matter is not moving forward is usually welcomed by parties, if not their attorneys.  But getting a timely hearing with some judges and in some jurisdictions is often impossible.  And, certainly not much of a push if scheduled too long in the future.   Plus hearings can only move the matter so much.

And, most knowledgeable attorneys will eventually always opt for a unilateral notice for trial to press the matter forward or at least press the matter to some final conclusion.   At the least, such a notice to obtain a trial date usually sends a clear message that someone is really interested in an end to the litigation, one way or the other! 

However, in some matters, obtaining a trial date must often then be used more to obtain a case management order for the orderly progression of movement toward trial, rather than toward a voluntary or negotiated resolution.  And we all know how difficult it is to actually be at trial on any first date designated by any Court.

And, obtaining a trial date can become much more costly and even risky, if you would rather be trying to put your primary efforts toward resolution than in preparation for a rapidly approaching trial date.  i.e.  If you have the (known) weaker case. 

Accordingly, why not, either concurrent with your notice for trial or even first, notice your matter for mediation

(Frankly,  my personal choice, for both sides, would be to always have a trial date on your immediate  horizon when you mediate.  It is mandatory for any Plaintiff.  And, for any Defendant really interested in voluntary resolution, it is the same.  As long as too much time remains between any mediation conference and trial, one side or the other, consciously or not,  will simply not have the requisite motivation to find their bottom lines.)

 A little noticed (and even less-used) part of Florida’s “mandatory” mediation law, provides that any Florida court, “MUST, upon request of one party, refer to mediation any filed civil action for monetary damages…..”  Florida Statutes, 44.102 (2) (a).

Although most of our Circuit courts are referring many matters to mediation quite timely (sometime too much so) and many parties jointly and voluntarily submit themselves to mediation even without a court-order, this knowledge of your ability to unilaterally “force” mediation is one of the weapons about which you must be aware and prepared to use if you are not achieving the movement in your case that you deem necessary.  And, this choice usually begins with a case where your opposition is not cooperating on anything.

Why is mediation a superior tool for moving a dispute?  Simple, mediation directly involves the parties

Mediation, unlike a hearing, requires direct participation by the parties!   That future required mediation conference participation  then requires immediate contact by your opposing counsel with his client(s) for scheduling and then consultation.  And, among those things, it requires your opponent counsel inform the client that the mediation process can result in immediate resolution without further litigation.

And, if there is one thing clients want, it is getting their litigation over!  Now it is not only you asking for movement and finality, but your opponent’s client(s) will be inquiring about the same thing.  And, will require your opponent to explain to their own client why NOT trying for a resolution now rather than at an expensive trial later makes any sense!

At the worst, Rule 1.700, Florida Rules of Procedure, allowing any party opposed to the referral to mediation to  be heard, will allow you some insight upon their reasoning for not wanting mediation or their lack of preparation for it.  Or, better, in the discussions that should take place before a disputed motion is heard, you will obtain some basis for the stagnation.

And, I am not suggesting that any attorney using this movement tactic should use it without some caution.   If you are to have only one mediation, too early can be deadly.  Thus, be prepared to withdraw your request/motion if the reasoning by your opposition is sound.

On the other hand, who says only one mediation is useful?  Mediations, properly used, are far more efficient for discovery, for example, than much expensive mediation.  And, many cases, particularly complex ones, simply should be mediated more than once.

Or perhaps your first mediation date will have to be re-scheduled?  And, more than once if information is necessary to success.   Or, even settled before mediation!  (Three of the reasons such a suggestion will not be popular with mediators.) 

But, don’t we schedule hearings to obtain movement?  And, are these hearings (and deposition) dates also often rescheduled?  Or do they not often lead to resolution, at least as to an issue or two?

Remember the old adage, “it is the squeaky wheel that gets the grease”?  If you are not using your unilateral power to push for a mediation that fits with YOUR needs, you are missing out on one of the best, and perhaps, least expensive, weapons in your trial preparation arsenal.

Next time your case seems not to be moving, consider unilaterally requesting a mediation!  Paraphrasing the Men’s Wearhouse ad, “You will like how (your case  moves)”.

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