Pre-Discovery Mediation Strategies: How to Resolve a Dispute When You Don’t Know What You Don’t Know

Typically in litigation, a good amount of expense relates to numerous depositions, not to mention interrogatories, document production, and other forms of discovery required before trial. The discovery process can take months, if not years, to complete. So it makes sense that parties and their attorneys like to schedule “early” or “pre-discovery” mediations in the hopes of resolving disputes with far less expense and delay. 

But walking into a mediation with unanswered questions is uncomfortable even for the most experienced practitioners.

How can parties succeed in early mediation, when questions about the facts of the case are yet to be answered in discovery?

As with all successful mediations, one key is preparation.

Practitioners can start by organizing three general lists for pertinent factual analysis. First, list key undisputed facts germane to the dispute. Second, list key facts that the parties dispute, and how these disputed facts impact the outcome of the matter. As an example, an undisputed fact might be the date of claimed loss, and that such date fell within an insurance policy period. An example of a disputed fact might involve the parties’ core disagreement over whether “X” or “Y” caused the loss, which impacts questions of negligence or coverage under an insurance policy. 

Third, list any unknown facts that come to mind – facts that once understood may impact the outcome. An example of an unknown fact might include what steps a claimant took immediately after the loss, or whether a party made any detrimental statements. Unknown facts are questions that will be answered in discovery.

Among any unknown facts, identify only those that are truly impactful when compared with the list of undisputed and disputed facts. In other words, why worry about unknown facts at early mediation if your position hinges mainly on undisputed and disputed facts that are known?

At the pre-discovery mediation, ask the other side to answer no more than two or three questions related to unknown facts. Be prepared to explain why knowing this information is important for a productive mediation, and not just a tactic to frustrate negotiations. Your opponent may provide reliable answers, or may not. You still will have the right to have these questions answered in discovery – under oath — if the mediation is not successful. And by asking a few focused and pertinent questions, you may gain a better understanding, at mediation, of the settlement value of your case.

Why ask about only two or three unknowns at mediation?

Early mediations tend to fail when parties are paralyzed by too many unknowns. Overemphasizing unknown facts –information that will be obtained in discovery if the matter doesn’t settle – defeats the purpose of an early mediation, steals time from more fruitful interest-based negotiations, and frustrates the other party who would rather negotiate than answer a multitude of questions about what, exactly, happened. 

Do not turn an early mediation into a fact deposition. Concentrate instead on each party’s resolution interests. Acknowledge that each party may be negotiating in a vacuum, to some degree. Emphasize that if the mediation is not successful, the unknowns will be answered in discovery, to the benefit or detriment of each party and at greater expense. Assess the costs of further litigation, and factor that into the settlement valuations for each party. Recognize that further litigation may be the best alternative to a mediated agreement. Compare the risks of settling without knowing all the facts against the risks of litigating without knowing all the facts. 

And remember that the point of an early mediation is to avoid significant discovery time and expense for each party. Do not lose sight of that significant value in settling, despite unanswered questions.