Mediation Is a Process, Not an Event

My family has always enjoyed bicycling, and over the years we have collected a number of books on the subject. One in particular, entitled The Bicycle Touring Book, by Tim & Glenda Wilhelm (Rodale Press, 1980), has a passage with a lesson for those involved in dispute resolution. In describing how bicycle touring, with its emphasis on "smelling the roses," differs from traveling by automobile, the authors (on page 177) state: "For them [motorists], it was just another long day behind the wheel on the way to somewhere else."

For many involved in litigation, mediation is just one event on the road to trial. Mediation is often scheduled only because the court says it must be, or because it is on a checklist prepared by somebody else. The mind set seems to be: "Today we are in a mediation mode; yesterday — and maybe tomorrow — we were/will be in a trial mode." While all litigators recognize that most civil cases do settle eventually, a settlement is usually thought of as a byproduct of good trial preparation; mediation is not considered to be central to their cases.

The skeptic will say, "So what? Strong preparation for trial equates to strong preparation for mediation; the two co-exist very well." I would agree with that statement, as far as it goes. What I am advocating, however, is not a dilution of trial preparation, but an expansion of focus.

Instead of focusing exclusively on how evidence learned in discovery will play at trial, I believe that litigators would be well advised to get into resolution mode right from the beginning. Unless a conscious decision not to settle has been made by the client(s), all actions taken — discovery requested, motions filed, etc. — should keep all forms of resolution firmly in mind.*

One useful approach to take would be to modify one’s visceral responses to questionable discovery requests. Instead of automatically objecting on principle (see, e.g., "I Would Rather be Right than . . ."), consider whether providing the information requested might not further resolution, despite the request not having been "reasonably calculated to lead to the discovery of admissible evidence."†

For example, when I first started practicing law, I was assigned by a senior partner in my firm to defend a personal injury case brought by one of the leading plaintiffs attorneys in my state — one who had been practicing for over 30 years. I suspect that if he had wanted to, he could have eaten me for breakfast. Instead, as soon as he received a copy of my appearance, he called me on the telephone, introduced himself, and invited me to his office to look at his file! When I arrived at his office, the file was waiting for me, superbly organized in a private conference room reserved for that purpose. Just about everything I would have thought to request in formal discovery — including both pre and post accident medical records — was included. As I analyzed the material, I realized that we could bypass a lot of the usual time-consuming pretrial activity and cut right to the chase. My opposing counsel’s act of practical accommodation paved the way to a fair and expeditious settlement. I suspect that 90% of personal injury actions could be handled in just that fashion without any of the parties giving up anything important.

* "Resolution," in this context, includes both trial and settlement.

† Fed. R. Civ. P. 26(b)(1).