Mediation 2.0

Vol. 15 No. 4

By

Shumaker, Loop & Kendrick, LLP

Adele Vespa’s article in this issue discusses conflicting views on mandatory mediation.

One way to square these views is to adopt what I describe as “Mediation 2.0.”

Mediation works best when both sides have enough information to (i) understand the respective merits of each side’s position and each side’s leverage and (ii) make an informed judgment as to the value of each side’s case. These are the “Driving Principles.” Based on these, Mediation 2.0 includes the following:

 

  • On notice of a dispute, appoint a jointly-selected mediator promptly.
  • The mediator, by phone, probes whether each side has enough information to mediate effectively now.
  • If they do not, the mediator arranges for a voluntary information exchange, ranging from simply answering questions from the other side, turning over documents, a short telephone deposition, or a limited audit. The exchange should be limited to only that information needed to meet the Driving Principles. It should be done as fast, cheap, and fair as possible.
  • The mediator then seeks to resolve the dispute by phone, or schedules a face-to-face mediation.
  • Informed parties, with good lawyers, proceeding in good faith, may choose not to settle. If so, the mediator should help them formulate a plan to resolve the dispute by arbitration or trial in the fastest, cheapest, and fairest manner.

I have drafted a detailed Mediation 2.0 clause (I call it early active intervention). If you would like a copy, please email me at psilverman@slk-law.com, or you can find it in the appendix to Lawyering with Planned Early Negotiation: How You Can Get Good Results for Clients and Make Money, by John Landes (ABA 2011), an informative book that describes new collaborative approaches to dispute resolution.

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