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The Closer
A Mediation Newsletter 
May 2013
Documents, Documents, Documents
by James Rainwater
I recently mediated a case that exceeded the usual amount of time needed for the type of matter involved. The reason? A court order had been issued a few months earlier. One side had a copy of it; the other did not. Let me clarify the situation. No one was attempting to control information or the like; it was simply a matter of assumption. The attorney with the information assumed opposing counsel also possessed it. Opposing counsel was not aware that a new order had been issued.
The upshot? A fair amount of time was lost due to this "missing" document. When the revelation was made, it was an "ah-hah" moment, and the mediation proceeded in a very timely fashion with few bumps along the way. Oftentimes, mediation is constrained by parties not wanting to be open and free with certain information, which can drag a conference on for, what seems like, an eternity. This was just a matter of simple miscommunication and lack of information.
The lesson here is to never assume the other attorney has exactly what you have regarding common documents and requested documents. It is much more effective for each party to spend time reviewing all materials prior to mediation, rather than waiting for copies to be made of those documents during mediation.
My suggestion for mediating attorneys is to make a list of those documents essential for mediation. If there are documents common to both parties, it is a good idea to contact opposing counsel to ensure everyone has the same materials: Invoices, statements, court orders, etc.
Of course, it is nearly impossible to bring every conceivably needed item to mediation, and we probably do not want ten banker's boxes of files for a three-hour conference. Yet, it is better to over-prepare than to not. We want to start off the mediation conference with everyone on the same page. Establishing that all parties are in possession of these common documents will promote a good faith effort and a feeling of mutuality from the opening statements until the resolution of the matter.
