The Closer

A Mediation Newsletter March 2014

The ADR Docket
by James Rainwater

While Alternative Dispute Resolution is practiced in nearly every part of the nation, each jurisdiction - from small claims court to state district court - has its own system of processing cases for mediation. Generally speaking, there are different approaches to handling a case that has been ordered to mediation by the court. Though procedures vary from one jurisdiction to another, here is some guidance for a smooth journey.

Mind the calendar. When the court sets a case on the ADR docket, this is usually well in advance of the trial date. This is the time to confer with opposing counsel and determine if a settlement is possible without a formal conference. If not, this is then the time to discuss possible mediators to use.

As some attorneys have their favorite one or two mediators or maintain an "approved mediator" list, it is important to agree on a mediator in whom both sides can have confidence. Occasionally, neither attorney can agree on a mediator, which then puts the decision on the court to appoint someone - either by means of personal referral or by pulling the name of the next mediator from the court's approved mediator roster rotation wheel.

As mediation offers the parties control over the case's outcome, choosing a mediator prior to the ADR docket keeps the decision with counsel. By agreement, choosing a mediator acceptable to both sides ensures that personality conflicts will be kept to a minimum, as the attorneys have some inkling of their choice's mediation style, conduct, etc. If no pre-ADR docket choice is made, the attorneys should be prepared to explain to the court any mediator conflicts of interest or, perhaps, the position that the case is not appropriate for mediation due to entrenched immovable differences between the parties.

ADR dockets are usually fast-paced, where attorneys appear to inform the court of their choice for mediator. Should only one side appear, the court is likely to accept that attorney's mediator selection, and the burden of arguing for someone different falls upon the absent attorney. The clients themselves rarely attend this docket and occasionally appear to assert their belief in the futility of a court-ordered mediation. The ADR docket is the court's means of assuring that a matter is proceeding properly. It is also a great opportunity for counsel to examine the case and attempt to dispose of it in a timely fashion. This moment should be utilized to actively seek its resolution. Do not hesitate, mediate.

Rainwater Law