The Discovery Question
Should formal discovery always be complete or nearly complete before participation in
an ADR process?
In many simple, lower stakes cases, essential information can usually be obtained without need of formal discovery. If the formal discovery mechanism is used, it need do no more than establish the basic facts, the damage ranges, relevant documents, and theories of liability. In these cases, settlement value is based upon what is known recognizing the need to adjust the credibility of the disputant, key witnesses, or other factors that may become apparent.
Capturing A High Marginal Return On Discovery
Even where some discovery is necessary, 80% of discovery information is usually obtained for 20% of the cost
In higher stakes, complex cases, compiling more than just "bare bones" information is often worthwhile. Even secondary facts and witnesses may have a large dollar impact on settlement value.
The information need not be obtained through exhaustive formal discovery; however, it is often worth the cost to conduct limited and focused discovery, while delaying the balance of possible discovery actions. Where all parties have retained experts whose investigation and conclusions will determine the various settlement positions, some discovery should be completed on the technical issues.
One excellent solution is for all parties and counsel to agree upon an abbreviated deposition schedule of key expert and fact witnesses (for example, limit depositions to "x" hours), reserving the right to continue any deposition if settlement is not reached.
Streamlined, focused and cost-effective discovery is best accomplished by agreement and cooperation of the parties and counsel. Since this may be difficult while they are locked into adversarial litigation, the parties may want to suggest a tailored "discovery mediation" that focuses on the necessary exchange of information. For example, the parties may agree to have the mediator make preliminary findings.
The only risk of obtaining information within the ADR process is that the powers of the court are not available to compel full compliance. However, it is usually possible to build in reasonable safeguards to insure that accurate information is provided and can be relied upon.
Dealing With Consequences of Incomplete Information
Coming to the ADR table with incomplete information simply requires that the parties have the flexibility to address any surprises that may arise.
The disputing parties need to have the flexibility to adjust their valuations based on new or different information. In some instances, the opposing counsel may present sufficient enough legal or causation theory to require delaying the mediation so that there is time for more thorough review and investigation.
While there is a trade-off between cost and complete information, the risk of paying more for delaying discovery will often be more than offset by savings in continued discovery or expert work-ups, and detailed legal research.
Should mediation be attempted before filing an important motion or while the motion is pending?
It depends on how much it will cost to file and respond to the motion.
Because preparing and responding to such motions can be very costly, the parties may be willing to take less, or pay more in settlement to avoid this cost.
It depends on how long the court will take before deciding the motion.
In some courts, ruling on a summary judgment motion may take a year of more. Fortunately, other courts are more prompt. If other litigation costs are mounting while awaiting the outcome, mediation may make sense.
It depends on the likelihood of success on the motion.
If the chance of success is not strong, it may be best to attempt to settle while the risk remains for the opposing party (before the motion is filed or decided). On the other hand, if likely to be successful, it may be appropriate to wait for decision before mediating. Or, mediation can begin while the motion is pending, factoring in to the case the likelihood of a favorable ruling. If both parties believe the motion is strong it may be an ideal time to attempt settlement
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