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Dispositive Motions and Mediation: Three Simple Tips for Greater Success

November 29, 2014

The ability of parties to resolve any dispute at mediation, even with total agreement upon all fact and law, will always present a challenge to any mediator simply due to reasonable differences of opinion of opposing parties upon future outcomes with these agreed facts and law.

And even if parties disagree upon a few issues of fact, understanding and appreciating the vagaries of any jury in deciding any disputed fact, will usually permit knowledgeable parties and counsel to try to find common resolution ground.

However, if parties have a serious difference of opinion as to what law to apply to a dispute, the likelihood of resolution, for that single factor alone, diminishes exponentially.

And, certainly, if one side or the other believes they will prevail solely “as a matter of law”,  voluntary pre-hearing or trial resolution then usually becomes impossible.

This is precisely why American legal procedure permits “dispositive” motions; a request to the court to rule timely upon any question of law so that the disputing parties will KNOW what (for the moment) law the judge will apply..  And, it is thus imperative for those who wish to successfully mediate to know how and when to use this technique; when to file such dispositive motions, when to have them heard and how to proceed, when you don’t.

My first simple tip: Always file your dispositive motions well PRIOR to your mediation.

Simply stated, our legal procedure permits any party to ask a judge to “dispose” of a legal issue by a request to timely rule upon the matter well prior to trial and thus, regardless of outcome, at least remove it from any parties’ mediation consideration.

Questions of law are routinely raised by a party disputing any law by a Motion for Summary Judgment.  And the request for rulings upon legal matters can range from individual evidence questions (a partial summary judgement) to addressing the legality of an entire cause of action or any defense to it.

By filing your request for your judge to dispose of any questionable law well prior to mediation, you immediately place yourself into the tactical position of timing your hearing of your motion for its best effect upon your coming mediation.

Such a filing, as discussed below, can then be used by either side for either a negotiating tactic or a genuine desire for a pre-trial narrowing of the specific legal issue.

However, it is when the matter is brought to the Court for ruling that determines the real intent/tactic of the Motion.  And, more importantly, it usefulness to pre-trial resolution.

For example, if you genuinely believe you will prevail, please set the matter for hearing PRIOR to mediation.

But, if you are highly doubtful, do NOT set it for hearing; (but then, please DO NOT give the motion much, if any credence, in your private evaluation for mediation.)

Note the immediate tactical usefulness of the motion, intended or not.

Equally important, however, by filing your motion timely before mediation, you force your mediation opposition to at least know of your mediation position. Further, their likely timely pled response to your motion increases your own mediation knowledge of any defense to your motion.

But, best of all, your timely motion greatly increases the knowledge of your opponent (and thus their represented party) upon this pending legal issue AT MEDIATION. (You know well my belief that more information for your opponent and mediator is only GOOD for you at mediation.)  See,  “Pre-mediation Summaries:  Why Bother?”, July 11, 2013 

My second simple tip: Always dispose of your opposition’s dispositive motions PRIOR to your mediation!

Even if YOU wish to use dispositive motions as a tactic, never let your opposition do so.

Hearings upon un-disposed dispositive motions are in the control of BOTH sides.  In other words, just because your opposition files the motion, their filing does not prevent you from setting it for hearing!

Thus, always use this equal power to call up your opponent’s dispositive motions before mediation.  This simple act will prevent them from turning their alleged dispositive motion into a mere tactical position at mediation.

And, if your opponent files too late for mediation; give strong consideration to a continuance of your mediation!  A non-disposed dispositive motion is just that large an obstacle to mediation.

Generally, the unknown is the largest obstacle at any mediation.  Like anything else in the law, most lawyers (and most parties) have the most difficultly in resolving matters where key matters are simply not known.  And the more unknowns, the more difficult the resolution.

In my opinion, finding out whether the judge supports or rejects your opponent’s legal position, prior to mediation, is critical to your success at mediation.

If your judge rejects your opponent’s legal position, your opponent cannot use the position to your detriment.  If your judge accepts their position, you can timely adjust your own evaluation of your position to take the very best advantage at mediation.  Truly, a win-win for the thinking lawyer.

(Some may argue that calling up your opposition’s motion you know the Court will grant removes your ability to argue at mediation that such may not happen; clearly a commonly held belief.  My response:  Give your opposition a bit more credit; if you “know” it, they already “assume” it!)

My third simple tip:  If you must mediate with undisposed motions, at least understand how to mediate in the face of any non-disposed dispositive motions.

Every mediator’s nightmare:  One side, or worse, both sides, have pending dispositive motions that could have been timely decided, but were not.  And, both sides assert that they will prevail on the same motion!

One procedure:  Send everyone home and adjourn mediation until the motions are heard?  (Just kidding; Mediators are usually not that brave.  And, in the end, only the parties ‘counsel can make the critical decision upon when to mediate.)  See, “Mediation Strategy:  Timing the Scheduling of Your Mediation”, January 28, 2012

My suggested procedure:  learn how to interpret the “real” situation and tailor your evaluation and negotiation within those guidelines.

My personal rule of thumb:  (And yours, if you wish.)

1)  If a motion COULD have been heard before mediation and was not called up my the MOVING party, it must be considered simply a tactical motion and nominal weight given to it.

2)  If the same motion was then also not called up timely by the OPPOSITION when it could have been, the substantive weight given to the motion must be then increased due to the oppositions’s lack of conviction in obtaining a denial.

3)  Result:  With this uncertainty, it  then becomes the mediator’s unwelcome task to determine the comparative weight to be given to the motion, by either side, in exploration resolution potential during private caucus.

Using this rule of thumb at mediation, however, still requires a mediator’s greatest concern.  And, normally the weaker side to the motion’s outcome simply cannot accept this potential weakness in their position and usually prefers to “wait and see” as opposed to capitulation to a lesser value.

Thus, the usual end result of the effect of these non-disposed dispositive motions: no meeting of the minds and no resolution!

Every mediation will always be a challenge under the best of circumstances.  And, my job is to maximize your best efforts at mediation.  See, “A Key Mediator’s Duty:  Maximize the Effectiveness of Negotiations”,  April 25, 2011

Thus, do yourself a favor and make it significantly easier by properly addressing any issue of law prior to mediation.  And, make very, very sure that you properly address and/or plan for all dispositive motions prior to mediation!

Happy Thanksgiving, 2014.

Dan, from New Smyrna Beach, Florida.

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