• LinkedIn Social Icon
  • Twitter Social Icon
  • Google+ Social Icon

© 2019 by Jerome F. Rock

Early Case Mediation

As the title suggests, the object is to engage all parties in a dispute resolution process  as soon as possible after filing suit, (or filing a Demand for Arbitration) and before any significant discovery activity has taken place.  Here are some of the significant features of Early Case Mediation:

  • Less disruptive to existing Business Relationships (especially important for internal shareholder or member disputes, supply chain disputes and any time future business relations can be preserved)

  • Business Principals maintain more control of Proceedings, as well as the outcome

  • Opportunity to cooperate in information exchange and thereby reduce costs of Discovery

  • Quicker results, and lowest costs

  • Private, No Public Records of the Settlement

  • Confidentiality of Proceedings during Mediation

  • Easy to customize ADR Process such as:

    • PreMediation conference with parties prior to Hearing

    • Multi stage Hearings or Joint Working Sessions

      • where the Mediator manages the exchange of facts and misunderstandings in a conference room setting among the staff actually involved in the dispute

      • and the follow-up session is reserved for the senior managers who use the information exchange as the foundation for negotiations.

    • Jointly retained experts, etc.

      • where technical issues are involved

      • experts are jointly selected, with an agreed scope of investigation

      • costs are shared equally

      • results of expert efforts are limited to Mediation Purposes Only. 

Triage your dispute and select Early Case Mediation if appropriate

Every dispute can & should be settled when the parties have sufficient information to make informed decisions.  Triage you case; is it possible to achieve a timely, cost effective resolution to this business dispute, or are you certain this is knockdown, drag out battle until litigation fatigue changes the rules? Is Early Stage Mediation the right priority? If the question is put to your client, the desire is universal, and the answer obvious. But what are the means, or framework to resolve serious business disputes while the rules of litigation are on hold?   I propose this challenge can be met using the Framework or Protocol discussed below.

 

 

A Framework or Protocol for Pre-Suit or Pre-Litigation Mediation for Business Disputes

I have developed a Framework or Protocol for Pre-Suit  and Early Stage Mediation for Commercial Disputes to provide advance instruction to the attorneys and principals of what I consider an integrated set of Best Practices for a complex business dispute at Pre-Suit or Early Stage mediation. This Framework or Protocol is only a suggestion, it is improved by integrating the principals' end stage objectives, along with the attorneys' and the mediator’s experience with successful techniques that resolve disputes.  

I've also provided a link to my Protocol published in the Oakland and Macomb County Legal News.

Please consider the following discussion on the Elements of Effective Early Case Mediation:

1. Select a Mediator that can support Early Case Mediation.

  • Leadership skills that explore options and strategies that reflect the special requirements of the case and the needs of the principals, in simple terms, a Problem Solving Approach.  Jerome Rock is a full time Arbitrator and Mediator and has successfully conducted over 1,000 mediations for business, technology and construction industry disputes.

  • Match the Subject Matter Qualifications of the Mediator to the needs of the dispute.  Jerome Rock has been a construction and business lawyer, and engineer and has been an executive in a high tech firm developing software supplications for automotive and manufacturing customers.

  • Require that the Mediator is experienced in Interest Based Negotiation methods.  Jerome Rock is the Chapter Author of Settlement and Negotiation in ICLE's Michigan Civil Procedure, a leading source of interest based negotiation theory and practice for attorneys.

2. Use the Mediator to establish and maintain a constructive, cooperative environment for the Mediation negotiations.  Jerome Rock has developed the Best Practice Model referred to as PreMediaiton, which systematically organizes the various details necessary for successful resolution.

3. Use the Mediator as a buffer to moderate advocacy and to avoid personality conflicts that could detract from the agenda to reach a fair settlement as soon as practical.

4. Adopt the "For Mediation Only" Discovery Protocol, which provides a convenient, cost effective way for information and document exchange under the confidential protection of Mediation.  Use this Protocol extensively.

5. Be open to creative approaches.  PreMediation is discussed throughout this website because it is the Gateway to Extraordinary Results.  As a result of the PreMediation process, suggestions that are often adopted include a two-stage Hearings, where the first stage is designed for constructive communication between project teams in a conference room setting, while the final stage is reserved for executives that are able to use the technical exchange as the foundation for successful negotiations.  Jointly selected and retained technical experts provide unbiased technical information to support the negotiated settlement.

The following reference materials provide more detail on my approach to support Early Case Mediation:

  • Mediation Agreement for Early Case engagement.

    • My standard Mediation Agreement includes a suggestion that parties engage in what I describe as PreMediation, as a means to explore as many options and choices as possible in the design of the Mediation Process. I refer to this Best Practice as PreMediation-The Gateway to Extraordinary Results.

  • At the very beginning, I also inquire if the parties would benefit from a Med-Arb option. Read my description of the Med-Arb Process to understand why it is important to educate the parties, and get their buy-in to the Process at the very beginning.

  • Case Studies - I've provided a number of examples of successful Pre-Litigation and Early Case Mediation engagements.

  • Please review the ADR References, organized by the following categories:

    • Auto Supplier Disputes

    • Construction Contract Disputes

    • Business Contract Disputes

    • Business Organization Disputes

    • Non-Compete, Breach of Confidentiality, Unfair Competition

Practice Pointer for Attorneys

If your client is unsuccessful in resolving the dispute at the Pre-Suit or "Pre-Litigation" phase, they will nonetheless leave with the confidence of having attempted to settle the dispute, and proceed with an informed understanding of the necessity of further litigation, and be more accepting of the costs and delays associated with the formal litigation process.