It's that time. You've just returned to your office from a case management conference. One of the items on the agenda was prospects for getting the case settled. As is typical, the judge suggested mediation. A few weeks earlier you had tried to suggest mediation to the other side. You had called on the phone and said "We both know that this case will be settled eventually, so why don't we hire a mediator and see if we can get it resolved now." After some initial hesitation (not related to billing the file) your opposing counsel agreed.
Now you are ready to start the convening (or "coming together") process. You represent the plaintiff and you need to be proactive.
You start finding out when all of the necessary participants in the mediation will be available, i.e. to show up in person and with authority to settle. You put out the names of a few of your favorite mediators and after talking to opposing counsel again you agree on one of them. Preferably your chosen mediator will follow the practice of conducting a pre-mediation conference call. If so the convening process should be more easily completed.
So does this mean that the participants will truly "come together?" Without a joint session the two sides may never even see each other. So then what to do? With a bit of coaxing from the mediator and with the right timing, the participants may at some point actually find themselves together around the conference table. And to the surprise of some (perhaps including the mediator whose fingers have been kept crossed) civility will prevail.
Should this scenario not play out as hoped for the mediator should have a Plan B for actually "coming together." In my book that is the "attorneys' caucus," a meeting for counsel only that the mediator facilitates. It's an opportunity to "talk shop" out of the presence of the clients. And it's also a good time to "meet and confer" in person regarding discovery matters. A "twofer."
When it comes to making agreements nothing can replace a face to face meeting. No conference call, no video conference. And certainly no "I will call my client and get back to you." There is nothing like a smile and a warm handshake. And a chance to look each other in the eye.
"Experts often possess more data than judgment."
- Colin Powell
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.