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The Sooner the Better: 4 Ways Mediation Can Resolve E-Discovery Disputes

Created on June 23, 2017

Former Content Marketing Manager at Exterro


Companies large and small often feel the pressure to cut their expenses. This used to be reserved for the business units of the organization, but today, in larger corporations, legal departments are no longer exempt from that kind of cost cutting.

When e-discovery is contentious, often a 3rd party can come up with creative and cost-effective solutions to get the case moving forward to reach a resolution sooner (90+% of civil litigation never goes to trial), and savvy legal teams can use e-discovery tools to get to the data faster, ahead of mediation, allowing them to project budgets, as well as appropriate settlement timing and value. By using mediation (or simply working directly with opposing counsel) earlier in the process, legal will save money and settle cases faster.

When Mediators Should be Used

One or both parties can move for the appointment of an E-Discovery Special Master at any point in the proceedings (In Federal court, the 26F Meet and Confer is a great time for this). The Court can also appoint a Special Master, sua sponte.

Cases in which Mediation is Most Effective

  • Those involving complex or voluminous ESI
  • Those with contentious interaction between opposing parties
  • Those in a jurisdiction where the judge has a full calendar (especially State Judges) or doesn’t have e-discovery expertise necessary to resolve the case in a way beneficial to both parties.

Mediators can help with FRCP Compliance

FRCP Rule 26

With the help of a mediator, parties should be able to define proportionality factors to decide if discovery is needed with respect to a claim or defense. If discovery is relevant for the case, then mediators can help with making sure it is proportional within the FRCP guidelines.

FRCP Rule 34

Rule 34 sets a limited amount of time to make production. But in a large case with multiple custodians, complex data sources, and large data volumes, it may be impossible to reach that deadline. In this case, the time-period could be extended by the judge and referred to a mediator or special master.

Best Practices for Resolving E-Discovery Disputes and Settling Cases Faster

Whether it’s resolving specific e-discovery disputes or projecting e-discovery costs earlier in the case lifecycle, there are four key ways parties can leverage e-discovery metrics and technology to help resolve e-discovery disputes and settle cases faster.

1. Conduct an early (not half-way-through) e-discovery data assessment

Before mediation, leverage the following technologies to focus on finding and analyzing the most important information first.

2. Don’t Wait to Seriously Consider Using a Mediator/Special Master

While many (64%*) may casually consider using a mediator, many parties don’t seriously consider using a mediator until after e-discovery is completed or before summary judgment. Taking into consideration best practice #1, the more parties know about their case, the more likely they are to leverage mediation and other settlement options.

3. Try Something New

56%* of legal teams have never used mediation to help resolve specific e-discovery disputes. The benefits of using an e-discovery mediator include:

  • Reduces potential e-discovery costs
  • Reaches a faster resolution of the e-discovery dispute
  • Identifies creative e-discovery solutions
  • Gives technical assistance for understanding e-discovery issues

4. Ask for Help

One of the primary causes for unnecessary e-discovery spend is not asking for help. E-Discovery is a complex, dynamic, and technical topic that most attorneys are not readily equipped to handle. The cost savings incurred from asking for help will all but make up for a slightly bruised ego.

Download the Full White Paper:

A little bit of upfront e-discovery can go a long way towards resolving issues quickly and cost-effectively through mediation. Download Exterro’s Latest White Paper: The Sooner the Better: 4 Ways Mediation Can Resolve E-Discovery Disputes