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 P. CARBONE is a senior mediator who has also served as an arbitrator and court-appointed referee. His dispute resolution practice has been built over a period of more than 25 years and covers a wide range of fields. His exceptional combination of transactional and litigation experience enables him to handle complex litigation and other challenging cases.
Michael resolves business and commercial cases, real estate disputes, employment claims, construction claims and defect cases, estate and trust matters, insurance issues, legal malpractice, corporate and partnership disputes, and personal injury cases. In his capacity as a court-appointed referee he has undertaken a wide variety of responsibilities, including sales and appraisals of real property, and the adjudication of trust accounting and administration matters.
He is a member of numerous dispute resolution panels, including the National Panel of Arbitrators of the American Arbitration Association. He is also listed on the mediation and discovery facilitation panels of several Superior Courts.
He is a founder and past president of The Mediation Society, and a member of many other professional organizations, including the Academy of Court-Appointed Masters, the Dispute Resolution Section of the American Bar Association, and the Association of Business Trial Lawyers.
Michael is a frequent author and speaker on alternative dispute resolution issues. He publishes a monthly newsletter entitled "Resolving It" which provides timely advice on strategies for successful mediation and discusses current issues, such as reforming the commercial arbitration process and mediating e-discovery.