I was talking to a colleague recently, and he told me that he was surprised to receive a request by a mediator for a pre-mediation call on an upcoming mediation. I was just as shocked as he was, but my astonishment was because he then revealed that, in over 40 years of litigating, he had never had a pre-mediation call with a mediator. As an attorney, I always appreciated pre-mediation calls because I felt that it showed that the mediator was truly invested in resolving my case. Now, as a mediator, I always offer pre-mediation calls with the attorneys on both sides. Here are just a few reasons why pre-mediation calls are beneficial:
- It allows the attorney to inform the mediator of the dynamics of the parties and the attorneys, which then allows the mediator to start the mediation with the appropriate tone.
- If briefs are provided before the call, it allows the mediator to ask follow-up questions and request additional evidence that might be helpful to resolve the case at the mediation.
- It allows the attorney to tell the mediator about any issues that the attorney might not want to discuss in front of the client, or inform the mediator of sensitive subjects to be aware of – this is particularly true in highly emotional employment matters.
- It allows the attorney to emphasize what the mediator should not disclose to the other side during the mediation.
- It allows the attorney to express possible hurdles to settlement (e.g., party relations, procedural posture, factual context, etc.).
- It allows the mediator to determine what information has been shared with the other side and, particularly in PAGA and class action mediations, encourage the parties to share information that might impact the valuation of the case.
- In multi-party mediations, it allows the mediator to ask the attorneys how they want to proceed during the mediation (e.g., co-defendants or co-plaintiffs in separate rooms, global offers/demands vs. separate for each party, etc.).
- It allows the attorney and mediator to build a rapport before the mediation, especially if the mediator and attorney have not previously worked together, which may help the client build trust in the mediator.
- It allows the mediator to discuss defense counsel’s relationship with insurance carriers and any issues regarding insurance that might play a role in settling the case.
Of course, pre-mediation calls are voluntary. However, I encourage every attorney to take advantage of this highly useful tool when it is offered.
Do you need to mediate an employment dispute? For information regarding mediation availability, contact Candace Yang at email@example.com.