In Delaware, cooperation and transparency in discovery are paramount.
For example, the District of Delaware has long had default standards requiring disclosure of search terms. Likewise, in both guidelines and transcript rulings, the Court of Chancery has made clear that search terms and hit reports should be produced upon request. And when using technology assisted review, the Court of Chancery in Berger v. Graf Acquisition, LLC, 2024 WL 4541011, at *4 (Del. Ch. Oct. 21, 2024), held that a party may use “TAR to reduce their discovery burden, so long as they are transparent . . .
This week at a meeting of the International Academy of Mediators, Robert Bordone presented on the topic of conflict resilience. In his best-seller, 𝘊𝘰𝘯𝘧𝘭𝘪𝘤𝘵 𝘙𝘦𝘴𝘪𝘭𝘪𝘦𝘯𝘤𝘦: 𝘕𝘦𝘨𝘰𝘵𝘪𝘢𝘵𝘪𝘯𝘨 𝘋𝘪𝘴𝘢𝘨𝘳𝘦𝘦𝘮𝘦𝘯𝘵 𝘞𝘪𝘵𝘩𝘰𝘶𝘵 𝘎𝘪𝘷𝘪𝘯𝘨 𝘜𝘱 𝘖𝘳 𝘎𝘪𝘷𝘪𝘯𝘨 𝘐𝘯, Bordone begins with a quote from Frederick Douglass:
𝐈𝐟 𝐭𝐡𝐞𝐫𝐞 𝐢𝐬 𝐧𝐨 𝐬𝐭𝐫𝐮𝐠𝐠𝐥𝐞, 𝐭𝐡𝐞𝐫𝐞 𝐢𝐬 𝐧𝐨 𝐩𝐫𝐨𝐠𝐫𝐞𝐬𝐬.
While Douglass was speaking about far more serious issues than mediation, the quote and Bordone’s teachings have important implications for the roles that lawyers can play in preparing clients for mediation.
Yesterday, Attia Qureshi and John Richardson’s new book, 𝘕𝘦𝘷𝘦𝘳 𝘚𝘦𝘵𝘵𝘭𝘦: 𝘗𝘦𝘳𝘴𝘶𝘢𝘴𝘪𝘰𝘯 𝘢𝘯𝘥 𝘕𝘦𝘨𝘰𝘵𝘪𝘢𝘵𝘪𝘰𝘯 𝘚𝘬𝘪𝘭𝘭𝘴 𝘵𝘰 𝘎𝘦𝘵 𝘞𝘩𝘢𝘵 𝘠𝘰𝘶 𝘞𝘢𝘯𝘵 was released. As a mediator, I was struck by how useful its lessons are for attorneys preparing clients for mediation. Mediated settlements are built on pre-mediation process—including preparation by counsel. Here are several ideas from Never Settle that translate directly into mediation practice.
Success at mediation begins before mediation. In addition to pre-mediation conferences with the mediator, 𝐨𝐧𝐞 𝐨𝐟 𝐭𝐡𝐞 𝐦𝐨𝐬𝐭 𝐢𝐦𝐩𝐨𝐫𝐭𝐚𝐧𝐭 𝐬𝐭𝐞𝐩𝐬 𝐭𝐨𝐰𝐚𝐫𝐝𝐬 𝐫𝐞𝐬𝐨𝐥𝐮𝐭𝐢𝐨𝐧 𝐢𝐬 𝐜𝐨𝐮𝐧𝐬𝐞𝐥 𝐡𝐚𝐯𝐢𝐧𝐠 𝐚𝐧 𝐨𝐛𝐣𝐞𝐜𝐭𝐢𝐯𝐞 𝐝𝐢𝐬𝐜𝐮𝐬𝐬𝐢𝐨𝐧 𝐰𝐢𝐭𝐡 𝐭𝐡𝐞 𝐜𝐥𝐢𝐞𝐧𝐭 𝐚𝐛𝐨𝐮𝐭 𝐭𝐡𝐞 𝐬𝐭𝐫𝐞𝐧𝐠𝐭𝐡𝐬 𝐚𝐧𝐝 𝐰𝐞𝐚𝐤𝐧𝐞𝐬𝐬𝐞𝐬 𝐨𝐟 𝐭𝐡𝐞 𝐭𝐡𝐞 𝐜𝐥𝐢𝐞𝐧𝐭'𝐬 𝐛𝐚𝐫𝐠𝐚𝐢𝐧𝐢𝐧𝐠 𝐬𝐭𝐫𝐞𝐧𝐠𝐭𝐡 𝐨𝐫 𝐥𝐢𝐭𝐢𝐠𝐚𝐭𝐢𝐨𝐧 𝐩𝐫𝐨𝐬𝐩𝐞𝐜𝐭𝐬.
The point of sharing such information with the mediator on a mediator's-eyes-only basis is not to arm the mediator with information to pick apart the client's position.
In any negotiation—particularly in corporate or commercial disputes—there is a dynamic that often shapes outcomes more than the numbers on the table: 𝐥𝐨𝐬𝐬 𝐚𝐯𝐞𝐫𝐬𝐢𝐨𝐧.
Imagine a party faced with a settlement that requires paying $1 million today, but positions them to earn more than that post-agreement. It’s a net positive. In practice, that $1 million payment often feels heavier than the larger potential upside.
In 2014, I wrote an article for the 𝘋𝘦𝘭𝘢𝘸𝘢𝘳𝘦 𝘓𝘢𝘸 𝘙𝘦𝘷𝘪𝘦𝘸 (link below) about the use of neutrals to assist courts and litigants with discovery, including facilitators.
At the time, use of discovery magistrates was common. It would take another four years for the first reported use of a discovery facilitator in Delaware, when I was appointed in 𝘈𝘬𝘰𝘳𝘯, 𝘐𝘯𝘤. 𝘷. 𝘍𝘳𝘦𝘴𝘦𝘯𝘪𝘶𝘴 𝘒𝘢𝘣𝘪. As the Court later observed:
