Jerome F. Rock

For complex matters, when the circumstances warrant, I prefer to meet with counsel and the principals for each side well before the scheduled Mediation Hearing. The widespread acceptance of video conferencing has made this initiative far easier than it once was. What formerly required travel, a conference room, and a half day from every participant now requires an hour and a calendar invitation.

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I recognize that this effort is not the usual mediation format. Through experience and positive feedback from prior cases, however, I have standardized the Pre-Hearing Conference as the foundation for successful resolution of business, technology, and construction industry disputes. My term for this hybrid process is PreMediation. Under the proper conditions I conduct these conferences by Zoom video conference.

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I suggest that PreMediation is the gateway to extraordinary results because this early engagement with each party gives me a full slate of options and suggestions that can be timely incorporated into the plan for resolution of the dispute. The topics below break out the parts of the model and demonstrate the importance of early interaction with the parties, before there has been a commitment to a costly litigation strategy that precludes what would otherwise be wise and prudent business decision making.

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Please Include Your Client.  The single most valuable decision counsel can make about the Pre-Hearing Conference is to bring the client. I ask that counsel include the party representative who will hold settlement authority, and any other person whose agreement will be necessary to authorize a resolution. The conference is useful with counsel alone. It is considerably more useful with the client present, and the benefits run in every direction.

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What your client gains

• Direct access to the neutral.  The client hears my role described in my own words rather than through a summary. That does more than anything else to dispel the suspicion that the mediator is aligned with the other side, with the court, or with the lawyers.

• An understanding of the process.  Most clients have never mediated. Learning the structure of the day, the function of the caucus, the confidentiality protections that apply, and what will and will not happen at the Hearing measurably reduces anxiety and defensiveness.

• Realistic expectations, formed early.  Hearing from a neutral that this is a negotiation rather than an adjudication, and that neither side ordinarily obtains everything it seeks, lands very differently than hearing the same message from one's own advocate.

• No surprises on the day of the Hearing.  A client who first encounters risk assessment and the arithmetic of compromise at the Hearing often experiences it as capitulation. Early exposure gives the client time to absorb it in private.

• The opportunity to be heard.  Many clients care as much about being heard as about the number. Satisfying that need early, without the clock of the Hearing running, is far less expensive than satisfying it later.

• Time to consult and to secure authority.  Board members, partners, spouses, insurers, lenders, and successors can be identified and consulted in advance rather than by telephone from a hallway, and the client learns what settlement authority will actually be needed.

What counsel gains

• Client education without counsel's fingerprints.  I absorb the burden of tempering expectations, which preserves counsel's role as advocate and champion. Counsel does not have to be the one to introduce doubt.

• The client's actual priorities.  Counsel frequently learns in these sessions that the client values something the pleadings do not emphasize, including timing, tax treatment, confidentiality, reputation, an acknowledgment, a reference, or the preservation of a continuing relationship.

• Insight into decision-making dynamics.  Who actually decides, who must be persuaded, and where internal disagreement lies.

• An early read from a disinterested audience.  Counsel learns how a neutral professional receives the theory of the case, with the client present to observe that reaction, and can gauge whether the client should speak at the Hearing.

• Reduced Hearing-day time and cost.  Groundwork moves out of the billable Hearing day and into a shorter, less expensive session.

What I gain as the Neutral

• Rapport with the decision-maker.  The relationship of trust described below can only be built with the person who will make the decision. Building it with counsel alone leaves the most important participant out.

• A direct assessment of the client.  Communication style, temperament, sophistication, tolerance for risk, and what is likely to persuade or to provoke.

• Interest-based currency.  The non-monetary terms that resolve cases almost always come from the party rather than from the brief.

• Confirmation of authority and of the real principal.  Whether the participant can bind the party, and whether an insurer, indemnitor, parent, or affiliate must be at the table.

• Calibration of technique.  Whether to use a joint session, opening presentations, plenary discussion, a neutral evaluation, bracketing, or a mediator's proposal, informed by having met the people involved.

• Credibility to be candid later.  A client who has already established trust with me will accept a hard reality check at the Hearing that would otherwise feel like an ambush.

• Early identification of what causes impasse.  Most impasse is not about the number. It concerns authority, participation, dignity, process, or information a party believes is missing. Nearly all of it is identifiable in advance.

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Attendance by the client is encouraged but never required, and a decision not to include the client will not prejudice a party in any respect. Everything said during a Pre-Hearing Conference is confidential, and I will not disclose the substance of a separate conference to any other party without permission.

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The Ease of Video Conferencing.  Video conferencing has removed nearly every practical objection to the Pre-Hearing Conference. There is no travel, no conference room, and no lost day. A typical conference takes sixty to ninety minutes and can be scheduled around the calendars of busy executives, adjusters, and out-of-state participants who could not realistically be assembled in one place. A client in another city, an insurer's representative, and a project manager at a job site can all appear from wherever they are. Screen sharing allows us to work through timelines, chronologies, spreadsheets, drawings, schedules, and damage models together, which is often more productive than circulating the same documents by electronic mail. Breakout rooms give counsel and client a genuinely private space to confer at any point. Sessions are not recorded. For most matters I am a strong advocate for video conferencing not only for the Pre-Hearing Conferences but for the entire Mediation Hearing.

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Mediator Role as Process Leader.  Mediators are experienced and trained to support a productive discussion exploring the alternative dispute resolution techniques that best match the special conditions of the case. The terms “Process Leader” and “Dispute Resolution Advisor” have been used to emphasize the advisory role of the mediator in recommending or selecting the appropriate ADR process for each matter. In advance of the Pre-Hearing Conference I encourage counsel to review a comprehensive Check-List of the issues and strategies that should be considered in designing the mediation process, and to share that Check-List with the client. It exposes counsel and the principals to the broad range of ADR options and to useful ways of customizing the process to suit the nature of the dispute. Because the Pre-Hearing Conference occurs well in advance of the formal Hearing, everyone has the opportunity to buy into that customization. With the cooperation of the parties I am able to act as a positive, assertive process leader and to become a creative force for problem solving.

Mediator Insight.  During the Pre-Hearing Conference I develop a sense of each party's legal position as well as its business, negotiating, and settlement objectives. The opportunity to clarify key issues and to identify the gaps or disconnects, factual and legal, between the two parties permits me to focus my Pre-Hearing efforts efficiently. I hope in the process to elicit candor about which issues or terms are genuinely essential to achieving a settlement.

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Mediators often face the challenge of confirmation bias, where each party interprets information in a way that confirms its own position while giving disproportionately little consideration to conflicting information or alternative possibilities. The same effect contributes to an overconfidence that improperly strengthens belief in the face of contrary evidence and produces an inability to evaluate logically the risk associated with the opposing argument. When these tendencies are identified and addressed early, during the Pre-Hearing Conference, I can begin to soften deeply entrenched beliefs and extreme positions, paving the path for negotiation and compromise. This is another reason the client's presence matters; confirmation bias is generally held by the party, not by counsel.

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Mediator as Problem Solver.  During the Pre-Hearing sessions I develop an understanding of the negotiating, settlement, and business objectives of the parties and of the impediments to resolution. As a Neutral I can ask probing or challenging questions, suggest strategies, make recommendations, and explore options. I have suggested Two-Step Hearings, in which the first session is designed for information exchange and discussion among the technical or project staff for both parties, and the follow-on session is reserved for the executives who complete the negotiation with the benefit of that technical interaction. Where technical or factual issues would benefit from expert input, I have found it effective for the parties to share the cost of a jointly retained expert engaged “For Mediation Purposes Only”. I have assisted in identifying and selecting the expert, agreeing on the scope of the investigation, and using the result as the foundation for negotiation. I also explore interest-based factors such as existing or prospective business relations and the chance to resolve disputes outside the scope of the current litigation, an approach referred to as expanding the boundaries of the settlement discussion. With the cooperation of the parties there may also be opportunities for me to act informally as a discovery facilitator, exchanging requests for information, maintaining schedules, and resolving pre-hearing issues. Because the Pre-Hearing Conference is conducted in advance of the formal Hearing, I have the opportunity to suggest options for compromise or to advance trial balloons, and the parties then have sufficient time to evaluate and react to those suggestions before the Hearing. Those new ideas are often key parts of the mediated settlement.

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Building the Relationship of Trust.  The Pre-Hearing session is an important first step in establishing a relationship of trust and reinforces the client's expectation that I will be diligent in assisting the parties as they arrive at a fair resolution. I have found that when both parties are confident in me as the Neutral, their commitment to the process is significantly enhanced, which improves the likelihood of an acceptable settlement. That confidence is built with the client, in the client's presence, and it is difficult to build by proxy.

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Encouraging Discussion and Enforcing Decorum.  There are times when one side feels intimidated by the strong or assertive personality of the other party or its attorney and prefers to avoid direct contact, even at a video conference Hearing. Anger or a sense of betrayed trust may prompt the same reaction, even where the contact would be virtual. An equally powerful factor that undermines a productive Mediation Hearing is an attorney's preference for caucus-only sessions. That format requires each party to state its demand to the Mediator and to expect the Mediator to relay the message convincingly to the other side. Shuttling back and forth in this way is a poor substitute for direct communication and it undermines the perceived neutrality of the Mediator. Based on my meetings with the parties during the Pre-Hearing Conferences, I may recommend a face-to-face video conference, known as a Joint Session, as a strategy for resolving the dispute. I can reduce reluctance by assuring the parties in advance that I will be forceful in maintaining a dignified and safe conference environment, and by assuring them of the confidentiality of the breakout room in which they may confer privately with counsel at any time. Joint Sessions are a powerful strategy in commercial negotiations, whether in person or by video. I want to be satisfied that any reluctance to hold one is well founded, and that I cannot address the underlying concern, before I forgo what could otherwise be a successful strategy.

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Providing Principals with the Day in Court Catharsis.  In mediation it is sometimes important to give a party the opportunity to state its position fully, to display its anger, and to express its commitment to fairness. This is the day in court catharsis. A party may genuinely wish to offer an apology or to explain the reason for its conduct, and at the other end of the spectrum an apology or a sincere expression of regret may be an essential component of a mutually agreeable resolution. In all likelihood this is the closest a principal will ever come to the drama of a courtroom. I am in a position to address that anxiety and to assure the principals that I will strictly enforce ground rules and maintain professional decorum during any direct encounter. In a sense I agree to protect the principal from the discomfort of a necessary interaction, which builds on the relationship of trust that allows the mediation process to continue. None of this is available if the principal is not part of the process before the Hearing begins.

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Tangible Return on a Best Practice.  There is an immediate return on the investment in the Pre-Hearing Conference. At a minimum, the time spent in the actual Hearing is substantially reduced, and counsel and client arrive far better prepared to achieve their mediation objectives. The Pre-Hearing Conference also eliminates the frustration of waiting in a separate room while the Mediator receives an initial briefing from the other side. At the start of the Hearing the parties, counsel, and the Mediator are prepared and are far more likely to be comfortable engaging in substantive discussion promptly and efficiently.

 

Copyright 2026 by Jerome F. Rock.  This was initially based on an article published by the author in the Wayne/Oakland/Macomb County Legal News on July 1, 2016 under the ADR Spotlight.