Dispute Settlement Counsel

Often I hear attorneys giving their clients an admonition or expressing reservations about using alternative dispute resolution processes like mediation or collaborative law that usually goes something like this: “I don’t think mediation is such a good idea because it’s just a tool used by the other lawyer to obtain free discovery.”

Let’s analyze that statement, looking at it with a reasonable person’s perspective and logic. And let’s test the assumptions inherent in that statement to see if it makes sense. Is the risk of “free discovery” really a serious concern?

Is there anything really problematic with giving the other side “free discovery”? And if “free” discovery is not desirable, then exactly what kind of discovery do we prefer? The opposite of “free” discovery would logically be discovery that is either “paid” for, or one that takes longer and requires the other side to work harder to get. So who is “paying” for the discovery? (Hint: In litigation, if the other side is paying, chances are very good that you are paying too.) Put differently, is the notion of “free discovery” really a misnomer?

From a litigation perspective, giving the other side information is only undesirable if you are trying to hide something damaging to your claim or your defense. If you are trying to hide something, that should tell you one very important thing: Your case has a weakness. The other problem with the notion of not giving “free” discovery is that the rules of civil procedure require all relevant information to be produced to the other side. This is even more forcefully stressed in the federal courts. Sanctions set forth in the discovery rules are increasingly enforced – on lawyers and clients alike – if things are not produced when they should have been, or worse yet, when evidence or documents are destroyed.

Combine that with the fact that any good litigator is going to find all the information sooner or later through one discovery tool or another. There’s a strong probability that unless the other side’s attorney is asleep at the wheel, you are going to have to turn over all the information. The longer it takes, the more costly the process will be, especially if you incur sanctions, and the more draining on your workforce it will be.

The truth is that no discovery is really “free”, and no party is free from discovery. But the parties can decide by the dispute resolution process they choose how expensive, time consuming, wasteful and draining the process will be. The efficiency of the information exchange is a direct consequence of the method the parties use. If you use litigation, discovery will be governed by the rules of civil procedure, by court orders and influenced by how the lawyers involved will use (and possible abuse) the discovery process. If you use arbitration, discovery will be governed in part by the applicable rules of arbitration and the practices of the arbitrator chosen for the case. If the parties use mediation, if there is discovery, it will be governed by a combination of the practice of the mediator with respect to exchanging information, and by whatever rules of engagement the parties have agreed to prior to the mediation. 

Then, there is Collaborative Law, which is in a sense, a hybrid of mediation and litigation, utilizing the best elements of both. The collaborative process includes in its structure a requirement that all relevant information be exchanged voluntarily and openly, at the beginning of the process. The mandatory early exchange of all relevant information is one of the critical elements of the collaborative process; a collaborative case cannot continue or succeed until and unless this information exchange has occurred.

So one difference between Collaborative Practice and mediation is that the required exchange of information is built into the former process. And one difference between Collaborative Practice and litigation is that the “discovery” process in Collaborative Practice is direct, efficient, quick and inexpensive. It is central to the process and if it is not done completely and in good faith, the process is terminated. In terms of time, we are talking about weeks vs. months. In terms of costs, we are talking hundreds of dollars vs. thousands. In terms of draining human resources, we are talking minimal vs. severe.

Next time: The difference between Collaborative Practice and litigation/arbitration in the way information is viewed and used.