Mediation as a Discovery Tool

Over the last 20+ years -- in my time as a trial judge, mediator and arbitrator -- I have learned that while the spoken reason given by litigants for scheduling a mediation is the resolution of a case, the unspoken reason is to conduct a wide-ranging discovery session aimed at obtaining insight into one’s opponents’ case strategy. 

Now, I don’t believe that this is inappropriate, a skilled advocate is always looking to represent their client’s interests. What it means though, is that you should keep this in mind when one is preparing for the session. You should do what you can to increase the opportunity to discover information about the opponent’s case and limit, to the extent possible, them from being able to do the same thing to you.  

In order to best use this strategy of mediation-session-as-discovery, there are a few steps to take. First, choose a mediator who will allow you to explore the other sides’ strengths and weaknesses for a reasonable amount of time. Providing that this approach isn’t leading too far astray, your mediator shouldn’t be pressuring you to inform your opponent[s] of the demand/offer. You want to preserve the time you need to gain your ‘discovery-like’ information goals.

Second, provide a mediation submission which is not as comprehensive as it might otherwise be. To the extent that your submission is extensive and all-encompassing, you may be giving your colleagues on the other side openings to propose questions to the mediator which will give more insight into your legal strategies. If, during the course of the session, you and your client decide that you have a much better chance at resolution that day, then you can verbally provide whatever information you think necessary to keeping the discussion going. 

Third, know how to get the information you need from the session. The type of information you can seek to obtain informally through the mediator runs the gamut from simple to complex. You can ask how your opponent intends to prove a particular part of his case and this can lead you to the name of a witness, the substance of his/her testimony, how well the witness will do in testimony and those pieces of evidence upon which that witness will rely in forming the testimony. You should be able to gain all this at a fraction of what you would have to pay to obtain it in formal discovery.

Using the early stages of mediation in this way can bring profound benefits to your case and your client. And there are many other things to consider when you have decided to embark upon the mediation journey. In my experience as lawyer, judge and mediator, I have developed an approach to case resolution that is comprehensive and fair. Follow me for more thoughts on smart approaches to the mediation journey.

-Originally published on Linkedin by Thomas Hogan