ADR CORNER
ADR CORNER
A Modest Proposal to Avoid Discovery Nightmares
( RET .) JUDGE LUCY CHERNOW BROWN
My life as a discovery mediator began with a court order appointing me to conduct a mediation among the parties on all disputed discovery issues in a complex , multiparty case . At the time , I had not heard of the term “ discovery mediator .” The order was issued in Florida ’ s Fifteenth Judicial Circuit by Hon . Ed Artau , now an appellate judge on the Fourth District Court of Appeal . He ordered that no discovery matter in the case be set for a court hearing unless it had first been mediated . To give the order teeth , and to start the ball rolling , he also canceled all discovery hearings already on his calendar in this case , pending mediation .
The Court ’ s Process
The court required a mediator ’ s report for every mediation session , summarizing the date , time , and subject of the specific dispute ; listing the parties and / or counsel in attendance ; and noting whether there was agreement or impasse . In this case , I issued 21 mediator ’ s reports to the court . All but one of the reports were accompanied by agreed order ( s ) resulting from mediation . Many sessions lasted for several hours ; some required a full day . Every agreed order was minutely reviewed and ultimately initialed on every single page by all counsel involved . The attorneys — at first unable to civilly discuss the disputed issues — reached resolutions with the help of a neutral mediator who had the time to listen to , read , and focus on their disputes . As I became more familiar with the details , the parties agreed and consented to have the court also name me as a special magistrate for the purpose of conducting all necessary in camera inspections .
Confidentiality : A Key Advantage
The confidentiality element of the mediation process was a major advantage in working out agreements among the parties . As the discovery mediator , I quickly learned the real interests of the parties behind their pending discovery requests and / or objections in private , confidential caucuses . Once I uncovered these , compromises became easier . After several long sessions , there were fewer confidential caucuses and more joint sessions as the parties became more comfortable with the process , the mediator , and each other . Another element that encouraged compromise was the positive environment provided by the law firm hosting the sessions . Lunches , conference rooms , and support staff for preparing the sometimes-lengthy proposed agreed orders helped everyone work together toward a common goal .
Positive Outcomes
The discovery mediation was successful , according to the judge and the attorneys ; I thought so too . Why is it relevant now ? And how can you explore this option for your cases ?
With the recent fast-track mandate of the Florida Supreme Court , local administrative orders requiring efficient case management and the resulting difficulty getting hearing time , discovery mediation can be a good alternative to getting bogged down in discovery litigation . It is a particularly good alternative for complex cases in which you are being stonewalled . And , yes , there is authority for the court ’ s referral of discovery matters to mediation — even without all parties ’ consent .
Legal Authority
Most of us are familiar with the special magistrate option for discovery matters under Rule 1.490 of the Fla . R . Civ . P ., which requires the consent of all parties . With an uncooperative opposing counsel , the court has no power to make the appointment under this rule . Does the court nevertheless have the power to compel discovery mediation without the agreement of the parties ? Yes . And there is legal authority to support this . Florida Rule of Civil Procedure 1.700 ( a ) authorizes a judge to “ enter an order referring all or any part of a contested civil
PBCBA BAR BULLETIN 6 matter to mediation or arbitration .” This allows a judge to refer discovery matters to mediation , even without all parties ’ consent .
Cost Considerations
Attorneys getting together , face-to-face , with an experienced neutral mediator in a conducive environment with the benefit of confidentiality were able to quickly to articulate and narrow issues , and then reach agreements to resolve their disputes . But was it more expensive for the parties ? At least one experienced attorney involved thinks that the cost of the mediator ’ s time was less than what her attorneys ’ fees would have been to prepare of all necessary legal briefs for court hearings .
Embracing an Innovative Approach
Most litigators have experienced the snowballing craziness that creates a discovery nightmare , bogging down a case . Being a discovery mediator was eye-opening . This innovative approach demands serious consideration for the cases that keep you up at night .
Judge Lucy Chernow Brown ( Ret .) served Palm Beach County for 24 years as a Circuit Judge , presiding over thousands of complex cases of all types . Judge Brown now serves as a mediator , arbitrator and special magistrate . A Florida Supreme Court certified Civil Circuit Mediator , Judge Brown is a neutral with JAMS , the international ADR provider . She may be contacted at : lbrown @ jamsadr . com .
This article is posted at : www . jamsadr . com / blog / alternative-dispute-resolution , and at Law . com / ALM . It is printed here with permission from JAMS .
For additional ADR tips and resources , go to https :// www . palmbeachcountybar . org / alternative-dispute-resolution-committee .