The ‘close to trial’ mediation session

Until now in our ‘mediation journey’, it has been assumed that the mediation has been held sufficiently far in advance of trial so that its use as a discovery tool could be fully utilized. This next series of posts will focus on mediations that take place in the four-week period prior to trial commencing. By this point in the litigation the parties have gathered the information necessary to reasonably form the issues which will need to be resolved at trial. They will know who will testify in what order and how each of the witnesses will perform. With all of these things settled the type of session which will be discussed will be solely focused on resolution. This means that at the end of this session those involved should know how the matter can be resolved.

Prior to the type of close-to-trial mediation we have been talking about, the mediator chosen should be one who has demonstrated the ability to provide the parties with a path to resolution. To assure this, ensure that the mediator is patient in his/her approach and will listen intently to all stakeholders attending the session. Make sure the mediator adjusts his/her approaches consistent with what she/he has been told. Be careful of the mediator who becomes directive at this stage, by telling the parties that they should do what it is the mediator is telling them to do. It is your case which is being resolved and you won¹t be happy with the outcome if you allow the mediator to have that level of control over its outcome.

Given the lateness of this type of mediation in the litigation process, the need for an opening statement becomes less important. The participants have utilized the full range of discovery tools (maybe even an earlier mediation) and so it’s probably too late to persuade using the opening statement. However, it is a good time to provide a rather exhaustive recitation of the facts and law which you believe supports your position. This will allow you to force your opponents (and the people to whom they report) to read a forceful explanation of your side of all the issues. This is something which they may never have done before.

Once the close-to-trial session begins, assuming that the submissions have been provided to all stakeholders, the only focus should be to determine whether the matter can be resolved on a reasonable basis. By now, the parties should be sending signals to mediator about what they each need to know in order to decide on a resolution before the trial’s conclusion. Now, the mediator should patiently ascertain what the sides are thinking. It is at this point when the mediator should begin to utilize the bits of information which they has acquired to move the parties to a range within which the matter could resolve. They should move at a speed which is designed to present options for resolution that flow from what they have heard the parties say during the session. The patient-listener approach employed by the mediator allows the parties to be fully involved in the decision to resolve. This approach also has the benefit of allowing the pace of the mediation to proceed at the parties’ speed which at the late stage of the litigation will take some of the emotion out of the session.

-Originally published on Linkedin.