Mediation is unique in that it may take place at any point during the life of a dispute. Notwithstanding the timing, proper preparation can ensure a successful mediation; and often, discovery is key to being properly prepared.
When and How Much?
Presentation of sufficient and reliable evidence is an important factor to help the mediator see and therefore support your side. Discovery also allows the parties to understand their potential exposure and/or limitations on damages. Without this understanding, the mediation may fail because the parties may fail to recognize a “good” settlement offer.
Early mediation:
At an early stage of the case, parties can and should agree on at least some limited, informal discovery. This may include exchange of basic documents, photographs and/or other critical information, including identification of witnesses and/or informal disclosures of what a particular witness might say at trial. There ought be some basic knowledge of what the evidence is going to be.
Late Mediation:
At a later stage of the case, the parties may have already engaged in formal discovery. Such formal discovery often involves considerable costs and delays, often without any guarantee of the usefulness of the information requested. But, the advantage of mediating late is that obviously most, if not all, the relevant information is known, and there are no surprises. The parties should have a fairly realistic view of their respective strengths and weaknesses.
There are pros and cons of mediating early vs. late, and the circumstances of the individual case will determine what makes the most sense.
Mediation as a Discovery Tool:
Mediations are privileged. This means that if the dispute is not resolved, nothing said or done during the mediation can be used against the other party later in litigation.
However, this does not mean that the mediation itself cannot be a powerful discovery tool. During the mediation process, the parties can ask pertinent questions for a fraction of the cost of a deposition. You may even gain insight into what evidence the other side considers most important.
In addition to learning facts about the case, mediation may also give the parties insights into the other side’s needs, wants, motivations or concerns. These insights can be quite important, yet they are typically not subject to standard discovery.
When it comes to mediation, how much discovery has there been, and when the mediation takes place can make all the difference.
