Editor: Early case assessment has become increasingly popular with corporate counsel. Has this increased the demand for experienced mediators?
Dreier: While early case assessment should be increasingly popular, especially with corporate counsel, its progress has been slow. Before counsel leap into litigation or arbitration, a dispassionate review by a trained and experienced neutral can often save hundreds of thousands of dollars in costs. There are two modes: a single mediator who assesses the problem for both sides and helps resolve it, and a private assessor who consults with a single party and who may then meet with a representative of the other side, but will not represent the party as an advocate in litigation. Both processes are valuable, especially if the parties have an ongoing relationship, but have a disagreement they cannot readily resolve by themselves. All the skills of a mediator are still required, but there must also be an understanding of the business realities faced by both sides. When this process is used to a wider extent, there will be an increase in demand for experienced mediators.
Editor: How is e-discovery handled in mediation and arbitration? How is cost of e-discovery controlled in these forums?
Dreier: E-discovery is an intricate and expensive process, with expenses increasing exponentially as a party digs deeper. A simple freezing of records upon the commencement of litigation and the production of readily retrievable documents is not too difficult, and this often is accomplished prior to mediation (and usually is done prior to arbitration) as part of a documentary exchange. The problems arise when there is a demand for the production of hard drives for duplication, a search for embedded metadata, or even a search for deleted documents. In arbitration, this may be necessary where the issues warrant such an expense, and the arbitrator can control the process. In a mediation, sometimes spot checks may be necessary to assure good faith, but usually practicalities will override the litigator's desire to have every stone overturned. When the aim is accommodation, the smoking gun is less important than a reasonable assessment of probabilities. E-discovery cost control can be justified when there is no judge, jury or appeals to be faced.