[The following is a revised and updated except from an article that originally appeared in the September 2015 edition of CAALA’s Advocate, in which I wrote: “Our civil justice system is broken. Overburdened and underfunded courts are . . . unable to dispense justice swiftly in civil cases. Today, with COVID-19 wreaking its own form of havoc on the court system, a central them of the article is particularly timely and bears repeating.]*

For reasons that largely escape me, mediators are usually retained long after litigation has ensued. By the time we are first contacted, battles lines have generally been drawn, positions have almost always hardened and relationships have too often frayed — creating additional and unnecessary impediments to resolution.

It doesn’t have to be that way. Contrary to popular belief, it’s never too soon to retain a mediator. Given the impact of COVID-19 on the courts, it’s never been more important to appreciate that fact. And if we’ve learned anything from the past nine months, it’s that conflicts can be resolved without having to gather everyone in the same physical location, thanks to platforms like Zoom.

But Zoom can be used to do more than resolve conflicts — it can also be used to manage conflicts.

Mediators possess a broad range of skills, the most overlooked of which is that we are trained in conflict management. Despite that training, we are almost never called upon to assist the parties in managing the myriad conflicts that arise as a direct result of everyday litigation. Instead, mediators are almost universally retained solely to help the parties resolve their underlying dispute — usually years after the dispute first arose and often only because a trial date is fast approaching.

As conflict managers, mediators are especially adept at helping parties focus on problem-solving. Given a knack for diplomacy and a penchant for peace, mediators are uniquely equipped to help the parties resolve discovery and other disputes that might otherwise require court intervention. A brief Zoom meeting with a skilled mediator to address issues that counsel have not been able to resolve on their own may be all that’s needed to get things back on track.

There may also be cases in which it makes sense for a mediator to play a more prominent and proactive role in helping to manage the litigation process itself. And with Zoom, it couldn’t be easier. For example, a Zoom meeting might be arranged early in the litigation between counsel and a mediator — and perhaps the parties themselves — for any one or more of the following reasons:

  • to identify the critical factual and legal issues which are in dispute;
  • to coordinate the timely, efficient and economical exchange of relevant documents and other discovery;
  • to determine which percipient and expert witness depositions are needed in order for the parties to engage in meaningful settlement negotiations, and to assist in establishing a practical and workable timetable.

Thereafter, the mediator might monitor progress at regular monthly, bi-monthly or quarterly intervals; assess when the parties are actually ready to sit down and negotiate; and arrange for the exchange of an initial demand and offer in anticipation of an actual mediation.

The best way to guarantee client satisfaction is to resolve litigated claims as soon as practicable, without compromising the final outcome. Engaging a mediator to help manage conflict and litigation from the very outset may be one way to assure that meaningful settlement discussions take place as soon as possible.

Put another way, it can sometimes be too late to retain a mediator, but it’s never too soon.

As always, It would be my pleasure to assist you and your clients in the dispute resolution process.

Best regards,

Floyd J. Siegal

* The article, in its entirety, can be accessed here: It’s Never Too Soon — Resolution Delayed Is Often Justice Denied