Companies large and small often feel the pressure cut their expenses. In the past, this was usually reserved for the business units of the organization, but today, in larger corporations, legal departments are no longer exempt from that kind of cost cutting.
90+% of civil litigation never goes to trial, and savvy legal teams are using e-discovery tools to get to data faster, ahead of mediation, so they can understand what’s there, who the main players are, what the main documents are, and can begin to project budgets for discovery and appropriate settlement timing and value. By getting to mediation faster (or by simply working directly with opposing counsel), legal will save money and time, and reach resolution sooner.
Why Use Mediation?
Often when e-discovery is contentious, communication and trust have broken down, and anything one party says is automatically discounted by the other party. Often in these situations, a 3rd party can sometimes come up with creative and cost-effective solutions to get the case moving forward either to settlement or to trial.
Private 3rd Party E-Discovery Mediator
A Mediator has an education on e-discovery best practices/remedies along with technical knowledge. Some of the things they can do are help the parties negotiate an e-discovery (or TAR) protocol, certify that the parties met in good faith before e-discovery motions are filed, and analyze search terms to identify terms likely to yield acceptable results.
Unless the Parties voluntarily give the Mediator the power, the Mediator doesn’t have decision-making authority. Instead, they use negotiation and persuasion skills to work toward a resolution. Working with a Mediator is more Informal, with very little required to be put in writing, which keeps confidentiality and settlement resolutions private.
A Court Appointed Special Master
Working with a Special Master is more formal but ensures that the case is managed effectively. Special Masters can be court appointed, and if parties can’t agree, the Special Master has decision making authority, subject to appeal.
With Special Masters, it’s a more formal and less confidential process, and periodic reports may be required. The decision of a special master is binding, unlike with the private mediator, but there is an appeal process with the magistrate or district judge.
When Should Mediators be Used?
One or both parties can move for the appointment of an EDSM at any point in the proceedings (In Federal court, the 26F Meet and Confer is a great time for this). The Court can also appoint a Special Master, sua sponte.
Mediation is most effective in cases:
- Involving complex or voluminous ESI
- With contentious interaction between opposing parties
- In a jurisdiction where the judge has a full calendar (especially State Judges) or doesn’t have e-discovery expertise necessary to resolve the case in a way beneficial to both parties.
What is the Focus in Mediation?
FRCP Rule 26
With the help of a mediator, parties should be able to define proportionality factors to decide if discovery is needed with respect to a claim or defense. If discovery is relevant for the case, then mediators can help with making sure it is proportional within the FRCP guidelines.
FRCP Rule 34
Rule 34 sets a limited amount of time to make production. But in a large case with multiple custodians, complex data sources, and large data volumes, it may be impossible to reach that deadline. In this case, the time-period could be extended by the judge and referred to a mediator or special master.
How E-Discovery Metrics Make the Mediation Process More Successful
Whether it’s resolving specific e-discovery disputes or projecting e-discovery costs earlier in the case life cycle, there are 4 key ways parties can use e-discovery metrics and technology to help resolve e-discovery disputes and settle cases faster.
- Conduct an early (not half through e-discovery) data assessment: Before mediation, leverage technology to focus on finding and analyzing the most important information first. The technology below will help:
- In-Place Preservation and Early Case Assessment. Allows parties to delve into the data to determine data sources, volume, and number of custodians, giving a sense of how much collection and processing will cost.
- Targeted Collections and Sampling. Allows parties to take a set of key custodians and search terms to test for relevancy. Avoids a “collect everything” approach, which is costly.
- Don’t Wait to Seriously Consider Using a Mediator/Special Master: While many (64% from a recent poll) may casually consider using a mediator, many parties don’t seriously consider using a mediator until after e-discovery is completed or before summary judgment. Taking into consideration best practice #1, the more parties know about their case, the more likely they are to use mediation and other settlement options.
- Try Something New: 56% of legal teams have never used mediation to help resolve specific e-discovery disputes, but that doesn’t mean you shouldn’t try it. The benefits of using an e-discovery mediator include:
- Reduces potential e-discovery costs
- Reaches a faster resolution of the e-discovery dispute
- Identifies creative e-discovery solutions
- Gives technical assistance for understanding e-discovery issues
- Ask for Help: One of the primary causes for unnecessary e-discovery spend is not asking for help. E-Discovery is a complex, dynamic, and technical topic that most attorneys are not readily equipped to handle. The cost savings incurred from asking for help will all but make up for a slightly bruised ego.
Remember, a little bit of e-discovery upfront can go a long way towards resolving issues quickly and cost-effectively through mediation. If your case fits the parameters in this article, it’s definitely something to consider.