Tips from Mediators

The parties are ready for mediation. At the last moment the young lawyer receives new evidence or an expert report from opposing counsel that impairs the prospects of the case. What should the young lawyer do – adjourn or proceed full-speed ahead?

Kevin Mullington

Expert reports can be tricky at every phase of litigation. In some cases they can be nothing more than a nuisance, carrying very little weight in the outcome of the case. However, in others, a solid expert's report can determine the outcome of the litigation.

When faced with the late delivery of an expert report, counsel must make an immediate evaluation of the importance of that report to the eventual outcome of the litigation. If the report impacts the issues that are at the heart of the case, proceeding without a critique by your own expert may be negligent. 

If the report is weak or deals with factors that are not central to the main issues in the case, it may be very proper to proceed without a responding opinion. I have seen many mediations at which one counsel criticizes another regarding the late delivery of an expert's report, but then continues with the process and settles the case.

Ultimately, whether to continue with the mediation or to adjourn to secure a responding report is the client's decision. That being said, this is an area where junior counsel may recommend that a client err on the side of caution and adjourn the mediation, unless that counsel is confident that the expert's report will not affect the client's settlement position. If your client does want to push on with mediation despite your urgings to adjourn to secure your own expert opinion, you should commit these instructions to writing so that they are clear.

Rick Brooks

I have yet to see a file in which new evidence did not come to light at some point in time.  Usually it is the revelation that the facts differ somewhat from what the client has revealed. It is incumbent upon the lawyer to assess the new evidence or expert report and determine to what degree it impairs the prospects of the case. The lawyer will have to make sufficient time to meet with the client and/or the opposing counsel to determine to what degree the revelation is detrimental. If the impact on the case is significant, the mediation should be adjourned to allow rebuttal evidence to be obtained and the mediation to be rescheduled with the parties on a more even playing field.