An assistant pokes her head into my office and says, “Momma doesn’t want to settle.” This assessment comes from observations made while escorting a husband/wife creditor to a conference room for today’s mediation session. It’s a court-mandated mediation. At issue are plan confirmation disputes in a Chapter 11 case.
Sure enough, Momma does not want to settle. And the mediation session concludes later that day without a settlement agreement.
It would be easy to cite this anecdote for the general proposition that mandatory mediations don’t work and shouldn’t be ordered. But such a proposition would be wrong on at least two levels.
First, there is a type of mandatory mediation that does work—and works very well. It’s planned-for mediation. This type of mediation is mandated in advance by court rules of procedure: the rules specify that a mediation session shall occur before a case can go to trial. Attorneys who practice under such rules know in advance that a mediation session must occur in a timely manner. So, they plan for the mediation session and develop case strategies around the mediation requirement. My experience is that mediation is highly-successful in courts with mandatory mediation rules.
Action Item: So, here’s a suggestion for a simple procedural step: incorporate a mediation requirement into the court’s standard pre-trial order form for adversary proceedings. Such provision could be as short and simple as requiring attorneys to, “Identify a date by which the parties will schedule a mediation session.”
Part II will address ad hoc orders mandating mediation.
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