By Hilary High
Some modern discovery situations are so complex and involve so many unknown factors that the only certainty is that it will be costly. Add intractable positions to the mix, and litigants are often unable to resolve resulting discovery disputes. In many situations, mediation offers a cost-effective, solution-based, and low-risk opportunity to resolve discovery disputes without a judge or special master’s involvement.
Why should litigants consider discovery mediation?
1. It avoids judicial intervention. Every “view from the bench” event or article urges litigants to resolve discovery disputes. Discovery mediation forestalls negative attention, avoids adverse orders (and the risk of sanctions), shows collaboration, fosters professionalism, and builds credibility.
2. It minimizes costs. Discovery mediation can be as narrow or broad as needed. Mediating an issue will cost less than obtaining a court order. It minimizes unproductive conversations and correspondence between litigants, and it eliminates the need for motions, briefs, and reply briefs. Litigants can informally educate a mediator about applicable rules and case law or about precedential, business, or industry implications. They will also save money by not traveling to and attending hearings. They may even agree to a telephonic mediation conference.
3. It resolves discovery disputes quickly. Hearing time ― much less enough time to work through complex or numerous discovery problems ― is hard to get and has a strict end time. Mediators are available on short notice, nights, and weekends, and they can spend as much time as litigants need to resolve a dispute. A mediated resolution allows litigants to move their case forward, instead of putting a case on hold pending a discovery hearing and order.
4. It offers flexibility. A mediated agreement can accommodate contingencies, alternatives, and subsequent developments, and it can be revisited by the parties. Unlike “court order” and “flexibility,” “mediated solution” and “flexibility” are not mutually exclusive. If involving IT or other specialists helps litigants reach an agreement, mediation would allow their real-time involvement, compared to introduction of potentially obsolete or out-of-context affidavits or deposition testimony at a hearing.
5. It is solution-oriented. In court, real solutions may fall victim to advocacy and the court’s need to render a clear decision. Practically speaking, mediated solutions formulated by the parties with the assistance of a neutral may be more effective.
6. It is risk-free. Discussions with the mediator are confidential. Party-crafted solutions offer certainty that is unavailable in court. Litigants worried an opponent will shirk a mediated discovery agreement may propose reducing it to an agreed order. Finally, if mediation is unsuccessful, the parties may still seek court intervention.
Litigants who want to resolve a discovery dispute without judicial intervention should consider mediating it. A professional neutral will help them work through contentious issues and craft workable solutions.
