Mediation is a process used, with the assistance of a neutral third person, to facilitate dispute resolution. In my mediation practice, I periodically take an additional step. Specifically, I offer the parties and counsel an option to participate in a private pre-mediation conference. If agreed, I hold conferences with the parties and lawyers for a limited time (two to two-and-a-half hours). In several cases, this process has laid a foundation for an informal resolution without the need for the scheduled mediation.

In “Door 1, 2, or 3: An Intro to ADR” (Wisconsin Lawyer, July/Aug. 2014), I explained that mediators use different mediation styles. An evaluative mediator will render an opinion as to the strengths and weaknesses of each side’s positions and a possible outcome if the matter proceeds to litigation. A facilitative mediator will allow the parties to develop the resolution. A transformative mediator encourages more interaction between the parties to further define the real issues and the eventual solution. Choosing a mediator who is flexible as to style and modus operandi is significant in meeting the parties’ needs and expectations.

Experience has taught me certain basic concepts:

1. Litigation is not always necessary to resolve conflicted matters.

2. Pre-mediation conferences may be therapeutic for the parties to create the appropriate environment for potential resolution.

3. Pre-mediation conferences allow the parties to get a better handle on all the relevant disputes and applicable issues.

4. If the parties are willing to work toward a compromise, the determination of “who is right or who is wrong” may be less important.

Lawyers often find themselves in a difficult posture because of investigation goals, discovery deadlines, research requirements, motion and brief submissions and responses, and hearing or litigation dates. The use of separate and informal pre-mediation conferences can change the dynamics of the mediation process. While many factors come into play, pre-mediation conferences help to create the necessary environment for the parties to protect their interests, define all the relevant issues, and reach a settlement. And, they’re workable regardless of where the parties or the mediator are geographically located, even if they are in different jurisdictions. In some circumstances, pre-mediation conferences may be conducted by telephone or other telecommunications.

Some experts in the field have diverse opinions regarding the essence of mediation. In 1994, noted mediators Robert Busch and Joseph Folger authored the book The Promise of Mediation. One of their theories was that “reaching a settlement is not the ultimate goal [of mediation], rather it is the empowerment of people and the furtherance of their recognition of the needs of the other side.” Commenting on this proposition, mediator Tony Piazza reasoned that “while we are hired to achieve settlement, we can do so without forfeiting the humanity and educational experience for all participants.” Moreover, other experts have questioned the very authority of mediators, saying the process “allows mediators enormous power to manipulate the outcome in the way they wish.” Significantly, pre-mediation conferences have often served as a prerequisite to eventual resolution.

I believe that settlement is the ultimate goal of mediation, while protecting the parties’ interests and meeting their needs.

The Pre-mediation Process

The mediation process generally includes the following steps:

• First, the mediator offers traditional mediation. The parties provide the mediator with a summary of the factual setting, applicable case law, supporting arguments, and a confidential settlement offer.

• The mediator conducts a conference call with counsel to determine whether the option of a pre-mediation conference is workable.

• If the option is accepted, the mediator meets individually with the lawyers and clients as soon as possible.

• The overall goal is to establish the parties’ expectations, get an overview of any esoteric information, review the legal and factual understandings and positions, and determine whether any existing tension requires the mediator’s immediate attention.

• The next goal is to determine the parties’ negotiating positions, potential remedies, and whether additional meetings are necessary.

• If the pre-mediation is unsuccessful, the parties discuss the option of converting the matter to a traditional mediation.

Advantages and Disadvantages of Pre-mediation Conferences

Advantages. There are many advantages of using pre-mediation conferences to settle disputes, including the following:

• The parties, themselves, determine whether they wish to use a pre-mediation conference and may limit the scope of the interaction.

• The mediator gets to know the parties, enhancing the informality of the process.

• The opportunity to ventilate may defuse the emotional setting, such as any existing tension, which allows the parties to engage in a rational analysis of all facets of the case.

• The mediator empowers the parties to define all the issues.

• The parties can confidentially share with the mediator all esoteric information, legal positions, potential remedies, and expectations for resolution.

• The mediator can ascertain facts about which the parties agree and develop possible stipulations.

• Time commitments and costs for all the parties are reduced.

• The mediation process and procedures to be followed are explained to the parties, eliminating uncertainty.

• The mediator is more effective and helpful after hearing both sides of the case and the parties’ respective positions in an informal setting.

• If formal mediation is required, it can be handled more efficiently – the mediator already has all relevant information.

Disadvantages. If the pre-mediation conference is unsuccessful, the parties might have shared too much information with the mediator. As a result, the mediator may lose status as a neutral third party, requiring the selection of a new mediator, if the parties so wish. Another disadvantage is the parties may become too rigid regarding their positions and expectations. Finally, keep in mind that mediators who are lawyers cannot engage in the practice of law while serving as the mediator. See SCR 20:2.4(a), (b) – Lawyer serving as 3rd-party neutral.

The use of separate and informal pre-mediation conferences can change the dynamics of the mediation process. While many factors come into play, pre-mediation conferences help to create the necessary environment for the parties to protect their interests, define all the relevant issues, and reach a settlement.

Having mediated many sexual harassment claims, I have found that the factual setting is often controversial and of a very sensitive nature. Additionally, accommodation matters raised under the Americans With Disabilities Act, such as employees with PTSD or employees who refuse to comply with the employer’s medical requirements (flu shot, and so on), are better handled with a pre-mediation conference to address both parties’ concerns, diffuse any tensions, and create a settlement environment.

Conclusion

Pre-mediation conferences are not new and are similar to certain other procedures in the legal system (for example, prehearing and pretrial conferences). Pre-mediation conferences enhance the parties’ opportunities to reach a compromise by removing traditional impediments from the process and allowing the participants to gain a better understanding of the other side’s position. A great majority of the cases that I have mediated reached settlement. The reason, I believe, is that the individuals involved engaged in good lawyering and good-faith negotiations and had a commitment to achieving a compromise.

Lawyers and mediators should determine if that option could reduce pending legal issues and factual disputes to a workable posture in their matter. I believe pre-mediation conferences could be used in other areas of the law.

When the parties are genuinely interested in developing an informal resolution, pre-mediation conferences may make the mediation process more constructive, meaningful, and efficient.