cbaReport-Nov12 - page 5

November 2012 CBA REPORT
cover article
itigation revolves around dead-
lines. Most often, those deadlines
are geared toward “the” deadline:
the trial date. But most litigators recog-
nize that the vast majority of litigated
cases won’t be resolved at trial. Instead,
they will be resolved through alterna-
tive dispute resolution methods; perhaps
most often mediation.
The likelihood of successful media-
tion significantly decreases when the
parties don’t have all the essential evi-
dence in front of them. Clients typically
will expect actual settlement negotiations
to occur during mediation. Clients typi-
cally do not expect mediation to serve
as a fact-finding mission (or, worst case,
multiple missions) in which the parties
don’t have enough evidence to make a
real run at resolving the case; or in which
a party shows up with a surprise in the
form of new evidence. Surprise is rarely
a good mediation strategy and can ir-
reparably damage the parties’ working
In general, missing evidence, such
as documentation regarding damages
or even the deposition of a key witness,
will make it difficult for the mediator
to evaluate the overall strengths and
weaknesses of the parties’ positions and
the potential value of the case. That type
of mediation can leave clients frustrated
and feeling as if mediation wasn’t worth
the time, the expense, or the (often)
uncomfortable personal interaction with
the opposing party.
To make mediation “worth it,”
consider establishing sooner, internal
litigation deadlines that are geared
toward the mediation date, not the trial
date. That will put you and your client
in the best possible position to stake out
the strongest and most favorable settle-
ment position grounded in the evidence.
Mediation does involve a good deal of
advocacy, but most often evidence is
what carries the day. Additionally, you
can never go wrong by being the best-
prepared party at the negotiating table.
Setting the Mediation Date
To employ this strategy, it will be
necessary to first determine when media-
tion is likely to occur in a particular case.
Often, the court’s scheduling order will
contain a deadline for mediation or a
specific mediation date established by
the parties. In federal court, the date to
track actually may be the formal settle-
ment conference, which can often take
the form of mediation, and at which it
is extremely important to be adequately
prepared to discuss settlement. Whether
a firm date is set early on in the case, or
whether the timing is left to the parties
to determine, consider the suggestions
below when setting this initial deadline,
which in turn should drive the litigation
activities discussed below.
Timing of Initial Discovery and
Necessary Follow Up
Initial written discovery requests
should be served well enough in advance
of mediation to account not only for the
response time provided by rule, but also
for the significant amount of follow-
up activity that may be needed after
the initial responses are received. That
follow-up activity can come in many
If there are deficiencies in the op-
ponent’s initial disclosures and/or
initial discovery responses, counsel has
an obligation to work with opposing
counsel to attempt to have the deficien-
cies cured. While it is important to meet
that obligation, be sure to have enough
time before mediation to have any
discovery motions fully briefed, argued,
and (hopefully) ruled upon by the judge.
Also, don’t forget that even a favorable
ruling on a discovery motion may give a
non-compliant party a specific amount of
additional time to become compliant, so
it is important to leave extra time for that
possibility as well. To the extent you are
able to anticipate discovery issues that
may arise in the future, factor those po-
tential issues into your internal deadlines
as well.
Assuming there are key witnesses
identified in the parties’ initial disclo-
sures and/or initial discovery responses,
be sure to leave enough time to get
pertinent depositions scheduled. If the
witnesses are third-party witnesses, con-
sider the time it may take to track down
such witnesses and secure their appear-
ance through a subpoena, if necessary.
Though the parties’ depositions usually
are the most important, third-party
witnesses often can provide valuable
support for your client’s settlement posi-
tion at mediation. On the other hand, if
those third-party witnesses support the
opposition’s settlement position, counsel
will have sufficient time before media-
tion to conduct any necessary follow-up
By Matthew J. Bakota
Timing Discovery and Motion Practice to
Make Mediation Work for Your Client
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