Posted on Apr 01, 2017 |Publications

By: Bob Worden, Esq.
April, 2017

Mediation is inherently a win-win proposition. All sides to a dispute need to gain something for a mediation to be successful. Why participate if there is nothing in it for you? But too many times, parties don't think about mediation until years after the litigation has been filed. The purpose of this article is to help you to get better results by identifying cases which can be resolved earlier than you think.

The first obstacle to resolving a case is the need for the defendant to obtain information. How can all parties ascertain the basic facts of a case to seriously consider resolving it early?

One solution is to arrange for an informal settlement meeting of all sides prior to mediation to discuss the facts and the nature of the damages claimed. Too often there is an assumption that discovery is required in order to learn what the case is about. However, the often lengthy and potentially contentious discovery process can be avoided by the parties stipulating in advance that anything discussed at the settlement meeting is not to be used for any purpose other than settlement. The plaintiff claimant can relate his/her version of the events, questions can be asked, notes taken, or, in a complicated case, a court reporter can be hired to record the conversation. In fact, this author prefers a transcribed meeting. The plaintiff claimant is not put under oath if recorded. The transcript is not signed and cannot be used as evidence in court. This streamlined, information gathering process helps the meeting move quickly and no one has to take extensive notes. The transcript of the settlement meeting is useful as people involved can focus on the information and not worry about writing all the details down. If there are questions after, it is easy enough to check the transcript.

One benefit of this early information gathering is that each side can determine what additional information or documents might be needed to assess the other party's position. Moreover, the defense gets the answers to important questions: Does the plaintiff claimant's story make sense? Will the plaintiff claimant make a good witness? What does the plaintiff claimant really want? Often, early on in many cases, all sides can be more reasonable before legal expenses have run up, knowing that each side will have legal expenses and years of waiting if the case doesn't resolve now.

Once an early settlement meeting has been held and information exchanged, counsel will be better able to provide specified documents and can perform legal research if there are any legal questions about the viability of the case or about whether particular damages claimed are compensable.

Typically, a mediation can be held within 2 to 3 months following the settlement meeting. If all sides are realistic, there is a good chance the case can resolve, and expensive, drawn-out discovery proceedings and court appearances can be avoided.

Often, the best types of cases for early mediation process are those where significant damages have been sustained, but it is not clear whether or not there is any liability of the defendants under the law. In these types of matters, all sides are aware that expensive litigation may go on for many years, possibly continuing through the trial and the appeal process. As the issue of liability is not clear, the claimant often would be happy to receive a quick settlement for a reasonable amount early on. The prospect of waiting for years and possibly receiving nothing in the end is a valid possibility. The defending parties should recognize the true cost of many years of defense and the benefits of closure of the case for a reasonable number now. If the claimant ends up establishing liability against defendants years later, after the defense has expended large sums in legal costs, the defense will regret not having seized an early opportunity to avoid an unpalatable result.

It is not uncommon for the attorneys involved in the case to have differing views on when to begin settlement discussions versus engaging in discovery, which may delay settlement for years. It is important for all involved to recognize the true cost of prolonging the resolution of the case. In my experience, two mediation sessions may be an option where there are contested discovery issues and the need to exchange authorizations to obtain additional medical records, earning records and so forth, before the claim can be sufficiently evaluated by the defense. First, an early mediation session under the guidance of an experienced mediator can help cut through the discovery battles to move the case quickly forward into a posture for resolution. Then, a second mediation session is held once the agreed discovery is exchanged. The second mediation is short, as everyone is already familiar with the facts and circumstances of the case, and is more likely to result in a positive outcome.

The benefit in an early resolution process helps avoid the risk to all sides for the simple reason that facts may change over time. Claimants can disappear, or pass away, making the claims for pain and suffering worth much less. Other claimants can go on to get surgery years after an accident, making their case worth more. Sometimes what appears to be a solid a case with very serious damages subsequently disappears with a new Court of Appeals decision on similar facts declaring no liability. Or, the Court of Appeals expands liability for a whole area of law because of compelling facts in a case that the defendant could have resolved reasonably years before. The benefits for all sides of accepting the “bird in hand” can be obtained with early realistic disclosure of information, followed by mediation.

Through, early mediation the parties can take a “common sense” path around unnecessary legal work and expense, and reduce the potential for disappointment and unpleasant surprises.


Bob Worden, Esq. is a member of NAM's (National Arbitration and Mediation) Hearing Officer Panel, and is available to arbitrate and mediate cases throughout the NY Metro area. He is a member of Lawrence, Worden, Rainis & Bard, P.C. in Melville, N.Y.

To view Bob Worden's resume, click here.

For any questions or comments, please contact Jacqueline I. Silvey/NAM General Counsel, via email at jsilvey@namadr.com or direct dial telephone at 516-941-3228.