Just the Facts, Ma'am
Joe Friday of the TV series "Dragnet" has been remembered for saying "Just the facts, ma'am" although the fact is (if you will pardon the pun) that he really said "All we want are the facts." Either way, you get the point.
Likewise, adversaries in mediation are mainly interested in knowing the facts of either other's cases. Legal arguments may be presented, but it is usually the facts that settle cases.
Facts can be explained through mediation briefs or in a joint session, but the more persuasive method is to build a record through discovery. The taking of depositions, production of documents, and the use of interrogatories and requests for admissions should usually be considered before a mediation is convened.
Discovery becomes even more important when insurance coverage is present. Carriers like to "see the goods" with written proof in their files. This process has been called "the beautification of the file." In particular, they want to see hard evidence of what the damages are, although lawyers often want to devote more time to proving liability.
Because discovery is expensive it is best to do it in stages. The amount of discovery that is necessary for mediation is usually less than what is needed for trial. And, since most cases never go to trial it is a waste of time and money to do full discovery for mediation.
Discovery can also be done during mediation. If the initial mediation session is unsuccessful then an adjournment for the taking of some depositions can be helpful. Deposition of the parties or other key witnesses can often cause positions to change and bring people closer together. Sometimes cases will settle without even having to reconvene the mediation.
Michael Carbone is a full time neutral whose practice focuses primarily on construction claims and defects, real estate, business disputes and complex litigation. He has mediated and arbitrated for approximately ten years. He has served as a court-appointed referee in real estate and business matters.
He is a past president of The Mediation Society, a member of the State Bar Standing Committee on ADR, the ADR Committee of the State Bar Business Law Section, and the Board of Directors of the California Dispute Resolution Council.
He practiced law for more than thirty-five years. His practice emphasized commercial real estate and general business matters, including litigation of construction, real property, land use, and business cases.
Additional articles by Michael P. Carbone