WSBA Efforts Regarding Early Mediation
In January 2011, the WSBA Board of Governors approved a charter for the Task Force on the Escalating Cost of Civil Litigation (ECCL). In its discussions, the task force identified the following factors for consideration:
The ECCL Task Force issued its final report to the Board of Governors in June 2015. It includes specific recommendations regarding mediation that, if adopted and implemented, are likely to serve the Task Force’s goals of “mak[ing] our courts affordable and accessible while preserving the paramount goal of justly resolving disputes”. ECCL Task Force Final Report, p. 45.
Current Status of Mediation
Most litigants engage in mediation as a “summit conference” or “settlement conference” after the completion of discovery, often on the eve of trial, and usually in order to satisfy the court’s case scheduling requirement. In practical terms, this means that the parties have already expended large amounts of time and money by the time they engage in mediation. This leaves little incentive to reach a mediated settlement agreement, because the benefits of such an agreement are perceived to be minimal as compared to the next step, trial.
Task Force Recommendations
To counter this reality, the Task Force report recommends
Because even earlier mediation may be possible, but the timing and benefit of early mediation will vary depending on the type of case, the Task Force also encourages each WSBA section to develop its own guidelines for what constitutes “early” mediation in its respective practice area(s).
Finally, the Task Forces sets forth a set of suggested mediation practices, based on its interviews of mediators. These include:
- Attorney time (legal fees)
- Case management (case schedules, trial dates, fast track)
- Case type
- Access to justice (making legal services more affordable)
- Pro se litigants
- Public perception of the legal system; impact on diverse Washington communities
- Use of alternative dispute resolution
- Litigation costs
- Economic motives that may increase the cost of litigation
The ECCL Task Force issued its final report to the Board of Governors in June 2015. It includes specific recommendations regarding mediation that, if adopted and implemented, are likely to serve the Task Force’s goals of “mak[ing] our courts affordable and accessible while preserving the paramount goal of justly resolving disputes”. ECCL Task Force Final Report, p. 45.
Current Status of Mediation
Most litigants engage in mediation as a “summit conference” or “settlement conference” after the completion of discovery, often on the eve of trial, and usually in order to satisfy the court’s case scheduling requirement. In practical terms, this means that the parties have already expended large amounts of time and money by the time they engage in mediation. This leaves little incentive to reach a mediated settlement agreement, because the benefits of such an agreement are perceived to be minimal as compared to the next step, trial.
Task Force Recommendations
To counter this reality, the Task Force report recommends
- Requiring mediation after the depositions of parties but before the completion of discovery, in order to minimize the stress and disruption of litigation and avoid the bulk of discovery costs, while still allowing parties to clarify and resolve factual issues; and
- Requiring a person with full settlement authority to attend the mediation, except for good cause.
Because even earlier mediation may be possible, but the timing and benefit of early mediation will vary depending on the type of case, the Task Force also encourages each WSBA section to develop its own guidelines for what constitutes “early” mediation in its respective practice area(s).
Finally, the Task Forces sets forth a set of suggested mediation practices, based on its interviews of mediators. These include:
- Considering very early mediation in certain types of cases that require very little discovery;
- Engaging in limited-scope mediation focused on specific issues (e.g., mediating resolvable issues even where the case as a whole may not be amenable to settlement, or mediating the scope and conduct of discovery in cases where discovery is likely to be extensive or contentious);
- Conducting mediation as a series of sessions rather than a one-day event; and
- Conducting pre-session meetings, in person or by phone, between mediator and counsel (or between mediator, counsel and client).
