Class Action Mediation

Virtual Mediation (Part 2): The Challenge of Establishing Trust

Like most aspects of litigation, mediation is a very personal pursuit. So much depends on the credibility and communication skills of the participants. Equally important are the participants’ non-verbal cues, including tone of voice, facial expressions, and body language. And a key to success of many mediations is the ability of the mediator to develop a rapport and trust with all of the players. Just as online poker cannot truly replicate the in-person card game, so virtual mediation is not a perfect substitute for a mediation that takes place around an actual table.

Despite its deficiencies, virtual mediation has some advantages. If some participants are not located where the mediation is taking place, it can save them the time and cost of travel. It also may provide some greater flexibility in how the mediation is structured. And, of course, in times like these, there may simply be no alternative than to mediate online. But parties who do not have to go to the trouble and expense

Virtual Mediations in the Age of COVID-19

I have been giving a lot of thought to the pros and cons of virtual mediation, and have been planning to post something here about that. In the meantime, my partner, Tom Dunn, has posted a very helpful piece about virtual mediation on our construction law blog. I still plan to add my two cents, but I couldn’t do a better job of describing many of the key differences between in-person and virtual mediations than Tom has done here. And “virtually” all of his observations apply equally to mediations of class action cases. So I give you this excellent and informative piece. I hope you find it as helpful as I did. https://www.solidfoundationconstructionlaw.com/2020/04/09/virtual-meditations-are-zooming-forward-jump-on-board/

A Few Do’s and Don’ts of Class Mediations

Having experienced class action mediations both as advocate and as mediator, I have witnessed a variety of approaches to the mediation process, some helpful and some unhelpful. Here is a partial list of do’s and don’ts when representing parties to a class action mediation.

  • DO come to the mediation fully prepared, knowing the strengths and weaknesses of your case and understanding the litigation risks to both sides. The risk analysis will depend in part on the stage of litigation during which the mediation occurs. For example, has the court yet ruled on the motion for class certification? If so, what is the likelihood that the court’s decision will withstand an appeal (if it hasn’t already gone through a Rule 23(f) appeal)? If not, how do you handicap the likelihood of class certification? Has summary judgment been briefed, argued, or decided? If not decided yet, what are the probabilities of success for each side? If plaintiffs prevail, what models are available for measuring damages,