Tag: mandatory

Mandatory Discovery Prior to a Voluntary Mediation?

Compel discovery in mediation

It is hard to have a successful mediation if one side feels it is missing information necessary to fully assess the case. Because mediation is generally a voluntary process, however, any pre-mediation exchange of information is generally left up to the parties, with (hopefully) the guidance of the mediator.

In Selective Way Insurance Company v. Schulle, 2014 WL 462807 (D.W.D.Va. 2014), after the parties agreed to mediate, the plaintiff filed a motion to compel the production of certain documents, and part of its argument was that information in those documents was necessary to fully assess its settlement position. The court granted the motion, first finding the documents relevant, but then adding:

[T]he court is a proponent of transparency in the mediation process and believes that disclosure of the requested information will facilitate the upcoming mediation. As other courts have recognized, discovery of [certain] information permits the remaining parties to assess their liability and “evaluate their risks in continuing with the litigation” and, thus, may ultimately “promote settlement of the remaining claims.”

The court also addressed a request by the producing part to limit the required production due to confidentiality and additional relevance concerns. The court rejected this, once again noting the impact on the upcoming mediation:

Moreover, as a practical matter, the proposed limitation would impact the likelihood of resolution at the upcoming mediation.

There is something odd about preceding mediation – a voluntary process based on cooperation – with a motion to compel. In the cited case, however, the timing of the motion to compel appears to have been advantageous to the moving party, not only because the documents would be an aid in the mediation, but also because the court seemed more inclined to grant a motion to compel on a close call due to the potential impact on the possibility of a settlement. One must, of course, weigh the dynamics of each situation, and in some cases a motion to compel could be viewed as an act of hostility causing the cancellation of a mediation, but the filing of such a motion is certainly worth considering.