How to Win Your Trial During Mediation

Published: March 2018
By: Kenneth D. Stern, Circuit Judge (Ret.)

You’ve been there often – much time and money has been spent getting discovery and other pretrial motions set and heard, but you still have not obtained the discovery and evidence needed even to settle the case, much less try it. Your client is expressing frustration with the process and with you. What do you do?  What you do is concentrate on expediting the process so that you can mediate the case to a settlement that will be a shortcut to success.   Here’s how:

  1. Get pending motions resolved

(1)   Compromise on discovery issues and file Agreed Orders

Seek agreement from opposing counsel to Agreed Orders resolving pending disputes (e.g., agreeing to limit the scope of a discovery motion, or agreeing to a format for protecting privileged information by limiting who may see it).

(2)  Keep moving for sanctions if opposing counsel chronically fails to fulfill his/ her discovery obligations;  the opposing party will have little tolerance for his/her attorney’s antics when the client suffers.

(3)  Use a Special Magistrate (aka Special Master) to hear discovery motions.

Since opposing counsel probably shares your frustration at getting motions and objections resolved, file a Joint Motion for Appointment of a Special Magistrate together with an Agreed Order, and the Court will enter the Order.   The Agreed Order should name the person being appointed as a Special Magistrate and should specify the Motions to be heard.  The  Magistrate will confer with you and opposing counsel to select the date(s) and location for the hearing(s), and to specify the format in which the relevant documents (each Motion, Answer Memorandum and Reply Memorandum, with exhibits) should be presented ahead of the first hearing date.

At the conclusion of the hearings, the Magistrate will take all matters under advisement and will issue a Report and Recommendations to the Court.  These are not binding; either side may file Exceptions, asking the Court to rule adversely to specific Recommendations.  However, if the Recommendations are supported by law and facts cited by the Magistrate, the Court will likely adopt them.

One cannot overstate the time and money saved by this procedure.  In one case in which I am serving as a Special Magistrate,  I was asked to address discovery Motions raising a host of legal issues. The motions necessitated evidentiary hearings and legal argument, and it was clear that it would have taken more than a year to have all the motions heard and ruled on by the Court, given its overwhelmingly massive docket.  After two days of hearings, and after conducting legal research, I issued a detailed, comprehensive  51-page Report and Recommendations to the Court.  Only one side filed Exceptions and these were on a few points.  My fees, though substantial, aggregated far less than the attorneys’ fees would have, had the attorneys conducted separate hearings on the Motions, months apart.  The saving of time was between nine and 10 months, and the attorneys now had the information needed to take depositions and conduct other follow-up discovery.

(4)   Seek Appointment of a Special Magistrate to assist the Court in                                                    document review.

Suppose  you or opposing counsel, in response to a Request for Production,  have submitted for in camera inspection 15 boxes of Bates-stamped documents,  regarding which various grounds of privilege have been asserted, and the Court advises you that it will probably be many months before all those documents can be reviewed and ruled upon by the Court.  You can unilaterally move the Court to appoint a Special Magistrate to perform the review and to file with the Court a Report with specific Recommendations.   Your client must bear the initial cost of the Magistrate’s fees, but the Order of Appointment can provide that the Court reserves jurisdiction as to taxing of those fees.

(5)   If your mediation date is set, enlist the Mediator to convince the other                          side to furnish outstanding discovery prior to the mediation.

You should ask the Mediator to represent to opposing counsel that the absence of that material will make it impossible for you to advise your client to settle because the material is crucial to your evaluation of the parties’ strengths and weaknesses in the case.  Such simple tactics often have the desired result.

  1. Create a Motivation for Your Opponent to Resolve the Case at Mediation

If you have unearthed evidence damaging to your opponent, or can plausibly claim that you are close to doing so, you have created an incentive for your opponent to settle before things get worse.  You should initiate a full-court press, filing credible motions (set to be heard after the mediation date) which, if granted, would strengthen your case and weaken your opponent’s, or even create new dangers in going to trial. These might include moving to amend to request punitive damages, to add counts to your Complaint or Counterclaims,  or to seek relief  (e.g., an injunction) not previously pled for,  and motions in limine  or  for partial summary judgment.

You’ve got many tools at your disposal.  Don’t hesitate to use them.

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