Conduct Just the Right Amount of Discovery for Mediation
By: Jan Schau, IAM Distinguished Fellow
Email: JFSchau@adrservices.org Posted: August 20, 2015
Albert Einstein famously said, “We can’t solve problems by using the same kind of thinking we used when we created them.” And yet many litigators continue to believe that before a legal dispute can be resolved they need to thoroughly review every shred of evidence, including noticing and enduring a series of uncomfortable and expensive depositions from every identifiable potential witness.
Quite simply, you don’t need to undertake such thorough discovery before mediation. In modern American litigation practice, it is assumed that every case will have opportunities for settlement, with some studies showing fewer than five percent going to trial. So why try to win by overburdening your adversary with discovery if you and your clients genuinely want to attempt to resolve the dispute?
Instead, from the moment you undertake a case, the discovery plan should consider the minimum necessary to convey your client’s convictions and minimize their expense and discomfort before giving mediation a try. Oftentimes, it is only after preliminary discovery is conducted that counsel see the wisdom of engaging in settlement discussions. But after too much painful discovery, the moment may be lost in the anger, frustration and investment of time and capital that has occurred during the scorched-earth phase of the litigation.
Naturally, you will want to know the basis for the opposing parties’ claims or defenses. This means that if it is unclear in the pleadings, you often will need some preliminary discovery, such as contention interrogatories, a basic document exchange and the deposition of the plaintiff. But unless the matter fails to settle at mediation, you don’t need to take depositions of every potential trial witness, or have the plaintiff examined or experts weigh in with their opinions.
In a business dispute, for example, you probably don’t need to review all of your adversaries’ backup documentation before a mediation. Trust your client’s side of the information and allow for some ambiguity so the process itself can work its magic. While discovery can be truly informative, it is, unfortunately, used frequently as a hammer to burden the other side with expensive formalities. Too often, that kind of approach is what led your clients into conflict to begin with.
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