By Eric Gillett
As a young attorney, mediation felt like capitulation. It was inconsistent with every step we had taken up to that point. Up until we were asked to prepare for mediation, the battle for evidence and discovery, along with the jousting between lawyers through oral argument to establish the law, was the focus of our attention. Rarely was quarter requested, and more rarely was it given. Every concession came with a price, or it was not provided lest we show weakness. Month after month, the battle waged on. This often led to hard feelings and strong negative opinions about the opposing counsel and their clients. But suddenly, the tone changed. We were told to put down our weapons. We were told to prepare for mediation.
To prepare for mediation, we were taught to put together a letter that outlined the facts and the law of our case. We were taught to describe why our view of those facts and the law was stronger than our opponent’s view. And then in conclusion, and despite our strong position, we were taught to express our willingness to appear at mediation, in good faith, to resolve the case.
In most cases, we received a similar and often more strongly worded letter from our opponent. And like our letter, they were willing to come to the mediation to discuss settlement.
At mediation, we spent much of the day expressing to our mediator why our view of the case was right and why the other lawyer’s view was wrong. The mediator’s shuttle between rooms was little more than a rehashing of what each side included in their mediation letters. After what seemed like a useless exercise of saber rattling, albeit with opposing sabers in separate rooms, the parties became sufficiently exhausted and began to shape their offers to meet somewhere in the middle.
By the end of the day, most cases settled. Each side walked away, claiming victory, casting the day’s events in a manner that focused on how well they made decisions. The mediator was judged by how well he or she kept the parties engaged, supported them when they took a stand, and yet convinced them that spending a little more money or accepting a little less money was a good decision and in their best interest.
That method of litigation is still in play. It may even be what you see regularly. But it leaves a lot to be desired. And there is a better way. There is a way to be more efficient, to focus your attention on resolving your case sooner, for the same result. Financially, that is a better solution for both parties. And it can be described in three steps.
Step One: Gather the facts
When your client walks through the door or the file drops in your inbox, review the information as quickly as possible, then give all your mental energy to decide what additional information you need to fully understand the case, both from a liability and damages perspective. Determine how you can get that information as quickly and easily as possible. Think outside of Civil Rule 26 and the rules that govern discovery between the parties. Save that for later, if possible. Once you jump into formal discovery, you agree to be bound by its rules. Time is dictated by those rules. The scope of your quest for information is bound by those rules. You may be limiting yourself unnecessarily.
Instead, determine how you can acquire what you need without discovery, even if it is not the best form of the evidence, perhaps even inadmissible because it lacks a proper foundation or is hearsay. It may be good enough to evaluate the case and put you in a position to advise your client how to resolve the case without the need to spend thousands of dollars locking down the evidence’s admissibility. You can lock it down later.
Gathering evidence informally encourages you to work with opposing counsel cooperatively. Sometimes this means asking opposing counsel to allow you to interview their clients, not to depose them. The scope of the interview can be agreed upon, the fact that the interview will not be conducted under oath can be agreed. Any number of agreements can be negotiated so that you can evaluate the case and put it in a position to settle sooner.
Discovering information informally is not your opportunity to impeach the opposing party. It is your opportunity to figure out what your case is worth without spending money unnecessarily. You can always build your impeachment evidence later.
In addition, gathering evidence informally provides the opportunity to avoid unnecessary clashes with opposing counsel. The less often you butt heads, the less entrenched you get before you need to put down your weapons and negotiate. Old wrongs will not need to be answered for, and hard feelings will not need to be appeased. Rather, a spirit of cooperation will be fostered, and both sides can use that spirit to get the case resolved sooner.
Step Two: Open your doors to opposing counsel
The next step is to voluntarily provide opposing counsel with as much evidence as they need to evaluate their case. This will often include information that is unhelpful to your case. There may be a video camera on your client’s vehicle that recorded the accident and supports an argument that your client bears most, if not all, responsibility. Give it up without a discovery request. It will probably be asked for in formal discovery anyway. There may be emails included in your client’s files that show a pattern and practice of doing business that is inconsistent with your breach of contract claims. Give it up without a discovery request. It will probably be asked for in formal discovery anyway. In short, give up all this information without a formal discovery request in the spirit of cooperation so that you can reach claim resolution sooner and for less money.
Approaching your opposing counsel with a request to exchange information informally may be met with suspicion. It may be met with a negative response. Your opponent may want to avoid the unfamiliar in favor of the familiar. They may be unable to operate outside their comfort zone. Do not let that stop you from trying. Your efforts will not go unnoticed by opposing counsel, even if they are not following suit. And they will be forced to recognize that you are doing all you can to resolve a case, while they are doing the opposite. When you arrive to mediate, your cooperative methodology will hold sway with your mediator and allow him or her to champion your position. You will be described as a straight shooter who is willing to compromise, to listen, and to fight only if necessary. That is a strong position for you and your mediator to use in negotiation, both at the mediation and before and after the mediation.
Step Three: Prepare opposing counsel for resolution
I’ve written recently about the problem presented when opposing counsel refuses to negotiate in good faith until you are late in the case, perhaps not until the eve of trial or after substantive motion practice is complete and a judge has weighed in on what the case will look like for trial. I talked about steps to take in that case. The steps described here can be used as well. It starts with you actively preparing opposing counsel whose view is that the case can be resolved sooner by cooperative informal discovery than later by other, more traditional, means. Regardless of how they respond to your request for early mediation or settlement discussions, make it clear you still intend to move forward with informal discovery.
Regardless of whether opposing counsel is providing you with informal interviews, or document dumps before you ask, do the work on your end to provide your information to them. Provide unfortunate videos. Provide unfortunate emails. Offer to allow informal interviews with your clients. Show opposing counsel you are an open book. And if they still won’t open their book, do your best to gather that information by other means. Interview non-party witnesses, search out public records, and then provide that to opposing counsel as well. And continue to promote settlement discussions.
By making it clear to opposing counsel that early mediation or negotiation is your goal, you will plant a seed that you are resolution-minded and their failure to engage is further and further from their client’s best interests. Doing your best to delay the time when picking up your weapons, engaging in discovery battles, or jousting in front of a judge becomes necessary. Even if that becomes necessary, you will be starting on higher ground than if you were the first to pick the fight. Good luck.
Eric Gillett is a professional mediator, arbitrator, and litigator. He is also a founding member and managing partner at Preg, O’Donnell & Gillett. He is licensed to practice in Washington, Oregon, and Alaska and has tried dozens of cases to verdict and mediated hundreds more. A highly experienced commercial mediator, Eric can be reached through his legal assistant, Jasmine Reddy, at 206.287.1775 or jreddy@pregodonnell.com. Further information is available at www.gillettmediation.com or via email at eric@gillettmediation.com or egillett@pregodonnell.com.
