Settling cases can be challenging. Even the small cases, the ones that people tell me will be “simple,” can require an unexpected amount of time and effort. This is especially true in the employment law setting. Since employment law cases tend to be more emotionally charged than many other types of cases, it is advisable for the mediator to try and assess the situation prior to the day of the mediation. For this reason, I make every effort to have pre-mediation conferences with both sides, separately, in advance of the mediation. Some particularly complex cases can even justify an in-person conference before the date of the mediation. In mediation, unlike arbitration, ex parte contacts are entirely proper. And because they are a part of the mediation, everything that is said is confidential. I find them to be an invaluable tool and am convinced that the information gained in the conferences often tends to minimize unexpected “detours” and obstacles on the day of the mediation.
Pre-mediation conferences serve many purposes, but perhaps the most obvious goal is to discuss logistical issues. A pre-mediation conference is a good time to confirm that individuals with full settlement authority will be present (or if they will be only available by telephone, confirm that). It is always better for the other side to know in advance that a party they may expect to be physically present at the mediation will not be there. Withholding this information until mediation day can add unnecessary emotion and drama to the process and get everyone off on the wrong foot. Pre-mediation conferences are also a good time to discuss how the attorneys would like to see the day proceed. For example, I use pre-mediation conferences as a chance to explore both sides’ feelings on the presentation of traditional opening statements in the initial joint session. While openings can often prove to be helpful, in some particularly emotional cases they may cause more harm than good. It is better to make this determination early on. Not only does an early mutual decision on this issue help de-emotionalize the situation, but it also allows the attorneys to know in advance how to best spend their time preparing for the mediation. It makes no sense to spend hours presenting an opening statement that both sides will decide at the mediation will not be presented.
Finally, the pre-mediation conference is the perfect time for attorneys to share with the mediator any concerns that he or she may have that they would rather not discuss in front of their client. I have had many attorneys explain to me in the pre-mediation conference that their Plaintiff client is unusually angry or harbors specific resentment towards one of the Defendant mediation attendees. I have also had defense attorneys warn me of a particularly stubborn client. Sometimes counsel will confide that they are concerned that their client has unreasonable expectations as to outcome. And I will often use the pre-mediation conflict to determine if there are any “personality conflicts” between attorneys. If the attorneys are at odds with each other, it is always better to know that going in.
The best advice to attorneys as to how to use a pre-mediation conference is to use candor. Let the mediator know in advance of any anticipated issues, and how you feel the mediator can assist. The proceedings are confidential so sharing this information beforehand can make the mediation proceed more smoothly and maximize the chances of settlement.