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Thinking Outside the Mediation Box

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Thinking Outside the Mediation Box

Source: Corporate Counsel
Date: May 1, 2017

Joel M. Grossman, Esq.
Most lawyers who have anything to do with litiga- tion are familiar with how mediation works: there is a dispute between your com- pany and another person or company, the parties select a mediator, and after a series of offers and counter-offers, and a little bit of luck, the matter is resolved. Of course, differ- ent mediators have different styles or approaches. Some like to have all parties attend a joint opening session while some never do. Some are comfortable making a Media- tor’s Proposal when the par- ties appear to have reached an impasse. Some are hesi- tant to suggest to the parties what the solution should be. But all of these approaches are focused on the traditional mediation model. Are there any alternatives to this model, and if so, when should they be used? The answer is that there are several different and often useful models for dispute res- olutions, and they should be used whenever it makes sense to do so. For example, if there is a dispute arising out of a disagreement about the law, for example, an intellectual property issue, the parties might engage an expert to evaluate the case from a neu- tral perspective. This expert would not be a mediator in the traditional sense, convey- ing monetary offers and coun- teroffers. Rather, he would shuttle from one party to the other in order to discuss the law and give his opinion to each side of what the likeli- hood is of that side prevailing in court. Once the expert has given his opinion to each side, Thinking Outside of the Mediation Box corpcounsel.com | Monday, May 1, 2017 PRESENTED BY JAMS Joel M. Grossman, Esq., JAMSthey can engage in a more traditional back and forth bar- gaining session. Another approach is to com- bine mediation and arbitra- tion in what has been called “med-arb.” In this process, the parties retain a neutral to help them settle their dispute, but also agree that if the case is not settled the same neutral will arbitrate the matter. This creates a completely differ- ent kind of mediation, as the parties are dealing with the very person who might end up presenting them with a bind- ing non-appealable decision. Recognizing this possibility, the parties might make offers and present arguments to the neutral that are very different from what they might say to a mediator. Parties often wait to mediate until a matter has been litigat- ed at least to some extent, with key documents exchanged and key depositions already taken. Some lawyers feel that this is necessary to fully understand the case and negotiate from a position of knowledge. But another approach which can also be successful is pre-litiga- tion mediation, with no prior discovery. One obvious advan- tage of this approach is saving the attorney’s fees that would have been spent on discovery. It’s certainly possible that some of those dollars might be used to settle the case. For in-house counsel, this approach limits the intrusion into the time of business executives who don’t have to spend hours in depo- sition preparation and then in deposition. But beyond the money and the time suck of litigation, the potential advan- tage of a pre-litigation media- tion is quick resolution before positions harden and settle- ment becomes more difficult. Pre-litigation mediation can be a win-win as both sides save time and money. While discov- ery is surely helpful, it is often the case that there are no sur- prise “smoking gun” documents and the parties are often in a good position to evaluate the case without the need of costly discovery. Each of the above approach- es differs from the standard mediation model, but under the right circumstances can be immensely useful. Joel M. Grossman, Esq. is a mediator and arbitrator with JAMS in Los Angeles. He has been exclusively devoted to mediation and arbitration since 2004, fol- lowing his 25-year legal career as a litigator, labor negotiator, and in-house counsel oversee- ing complex entertainment dis- putes. You may reach him at jgrossman@jamsadr.com.  Monday, May 1, 2017 Reprinted with permission from the May 1, 2017 edition of CoRpoRate Counsel © 2017 alM Media properties, llC. this article appears online only. all rights reserved. Further duplication without permission is prohibited. For information, contact 877-257-3382 or reprints@alm.com. # 016-06-17-02