Pre-mediation calls between attorneys and the mediator, whether jointly or separately, are a useful part of mediation preparation. Of course, these calls can be used for things like scheduling, but what is really productive is where, “the mediator serves as a moderator–so to speak–of that call, and asks questions like, ‘Are there any other documents, are there any documents that either of you believe that you need to be able to have a productive mediation session?’” In this episode, Jean Lawler–commercial + insurance mediator and arbitrator–draws from her experience as a mediator to discuss the value of pre-mediation calls. Episode highlights include:
- The value of a joint pre-mediation call between the mediator and counsel for both sides
- The value of a private mediation call between the mediator and counsel for one side
To connect with Jean Lawler, follow her on LinkedIn or find her at LawlerADR.com.
To read the full episode transcript please see the Podcast Website.
[intro music]
JEAN LAWLER:
Hello, it's so nice to be here with you today. Welcome to ROADS TO Resolution ~Closure and ~Certainty. I’m Jean Lawler. I’m your host, and I look forward to talking with you today about pre-mediation conference calls. As a mediator, I am honored to be invited into other people’s lives for a few hours. Lives–that like all of our lives–are shaped by the many roads that have brought us to our “today”, roads leading to the unexpected, and roads leading to the promises of “tomorrow”. So let’s get to it.
Pre-mediation calls. I can tell you when I was in practice, pre-mediation calls just did not happen, or at least they never happened with the mediators that I was using on my cases. But when I went on the United States Federal Court panel for the Central District of California–which I’m very happy to be a part of–they required that. It was part of the requirement for the mediations that were panel mediations, and I learned so much from this and I thought I would just share some of that with you, for you to think about. If you are not used to doing this yet, or just not too sure if you want to do it, let’s talk about pre-mediation conference calls.
The first thing here is the pre-mediation calls that would be joint with all the attorneys on the case and the mediator. Some of those are not very productive necessarily; it just depends on what you’re willing to talk about on that. If it's just scheduling, then that’s just scheduling, and that can be productive too, but you can also get scheduling done other ways.
But the thing is that I’ve found to be productive with those, the mediator serves as a moderator–so to speak–of that call, and asks questions like, “Are there any other documents, are there any documents that either of you believe that you need to be able to have a productive mediation session?” And then when the lawyers will actually talk to each other about that, “Well yes, I really need certain medical records or I need certain financial documents,” or whatever it might be. Then if they’re willing to share those they can share them under the mediation privilege or confidentiality, depending on whether your state is a privilege state or a confidentiality state. But they can share that as part of the mediation session in advance, so that then they are prepared, or maybe they agree they are going to do it as a discovery thing, and then hurry up and give the responses.
But what I have found is–that then can affect the scheduling in a positive way so they know if they need this, they agree to–usually and ideally–they agree to voluntarily produce it as part of the mediation context, as part of the mediation. But however they’re going to get it, then the timing and the scheduling and the mediation can be done accordingly. So maybe it would be a month later than they were originally thinking, depending on how much time it will take to share the documents, for example, and then time for the receiving party to be able to evaluate and analyze the documents. So that is a big value that I have found coming from pre-mediation calls where counsel for both sides are on the call.
Most of the pre-mediation calls that I do are actually just with one party or the other, and usually I do both parties–unless one party doesn’t want it–I will have pre-mediation calls with both sides separately. And that’s a wonderful opportunity for me to be able to ask questions about the case or the parties involved, or the clients, or whatever it might be that they can’t, or won’t, or don’t put into a mediation brief, or even allow me to ask questions about facts that then will allow them to go back–the lawyer to go back, maybe, and think about my question and get some additional information. There have been many times where I have talked to counsel and they say this, that or the other thing. And I say, “Well, what do you have to support that? Do you have pictures, do you have documents?” Do you have…whatever it might be? And they’ll say, “Oh, yeah” and I’ll say, “Bring those. Bring those to the mediation so that we can share them during the course of the mediation.” And that makes a big difference.
So I do think that pre-mediation calls are a benefit. I would highly encourage anyone listening to this message to consider it ideally in all of your cases, no matter how small or how big. Preparation is key and of course, this is part of preparation, but it does give you a chance as the lawyer to have time alone with the mediator in advance–time for you to talk about your case, the highs and the lows of it (if you will), what it is you are really looking for out of the case, things like that. And it just starts to develop a relationship, and you can do that with the joint calls as well. As a claims professional, if you’re with a third party administrator, insurance company, in-house, risk management, this gives you the same benefit, and whether just the lawyers want to participate, whether individually or jointly, or whether the claims rep, or the general counsel, others who are involved would want to participate, then that’s fine, just talk to your mediator about it.
So that said, I really highly encourage it. Please do think about pre-mediation calls, because I think they have become the norm, not the exception. Or they should become the norm, not the exception, if they aren’t in your area of the world. Thanks so much for joining me today. Please feel free to follow me on LinkedIn, connect with me on LinkedIn. Subscribe to my Youtube channel, ROADS TO Resolution and ~Closure and ~Certainty, and my podcast. My website is LawlerADR. I look forward to seeing you somewhere out there in the future. Thank you so much. Bye bye.
[outro music]