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Oy Veh -- How Do We Get These Parties to Mediation Again? It's Neither Art Nor Science!

Magistrate Judge Goodman is still presiding over that Procaps case and, after a failed mediation, the plaintiff sought to order the defendant back to the negotiating table.

How do you defend against such a motion?  Of course you have to mention something about the failed mediation (even if the details remain privileged).

Or can you?
On August 18, 2014, Procaps filed a Motion to Compel Return to Mediation [ECFvNo. 572], which Patheon opposed. In Patheon’s opposition [ECF No. 587], it resolutely objected to a return to mediation, making several strong statements that called into question the ability of the parties to compromise in this case, at times alluding to the previous mediation that had occurred. Procaps contends that six specific instances in that opposition violate the confidentiality inherent in mediation sessions: statements that (1) there was a “monumental gap” at mediation; (2) Procaps refused to “close the gap” during or after mediation with a reasonable settlement; (3) Procaps made an “over‐the‐top” settlement offer at mediation “based” on Patheon’s revenues; (4) Patheon made a “counteroffer” to Procaps’ settlement offer from the mediation; (5) Procaps refused to disclose a rule of reason theory to Patheon; and (6) Procaps’ counsel made no effort to confer in good faith about mediation and settlement. [ECF No. 592, p. 2]. Given these alleged violations of mediation confidentiality,1 Procaps argues that Patheon’s entire pleading should be stricken by the Court. 
Ok, so your game plan to settle with the defendant is to file a motion compelling them to mediate again, and when they oppose, move to strike their pleading?

Good way to build settlement momentum!

But the loquacious Judge says it is mere "mediation puffery": 
It is, of course, absolutely true that Patheon made the statements attributed to it by Procaps, as the second to last paragraph of the response alone features a rundown of almost every allegedly offending statement in controversy in a single sentence. [ECF No. 587, p. 4]. However, almost all of the challenged disclosures are innocuous and not violative of the confidentiality rule....It stands to reason that any argument that opposes a return to said mediation would mention ‐‐ at least to some limited degree ‐‐ the fact that the previous mediation did not succeed because of substantial differences.
Then, after denying the motion, the Judge entered a docket order gilding the lily on what conditions need to exist before he would compel another mediation:
ENDORSED ORDER denying without prejudice 572 Plaintiff's Motion to Compel Mediation. The Court may order a second mediation -- but only after resolution of many, if not all, pending issues and projects, such as (1) Procaps' obligation to provide additional discovery following completion of the forensic analysis of its ESI, (2) Procaps' motion to compel a forensic analysis of Defendant Patheon's ESI, (3) Procaps' duty (as outlined in a recent order) to provide responses to the outstanding discovery requests it previously avoided by representing an intent to not proceed on anything other than a per se mode of analysis, and, (4) a possible defense summary judgment motion on Procaps' newly-focused rule of reason approach to its antitrust claims.

Either party may file a motion for mediation after complying with Local Rule 7.1, but the Court strongly suggests that no motion be filed until at least most of the issues and events flagged above have been resolved or completed. Alternatively, the Court may well order a second mediation on its own, in the absence of a motion.

The Undersigned believes that mediation is most effective when the timing is right -- and the Undersigned does not consider the present time to be the right time for a second mediation. Determining the right time for a mediation is more of an art than a science, but neither an artistic approach nor a scientific approach suggests that now is that time. Signed by Magistrate Judge Jonathan Goodman on 10/22/2014
So probably after Tisha B'Av 2016 we can start looking at some dates.


  1. Loquacious, excellent description!

  2. Why file a motion to compel mediation when the defendant doesn't want to settle?

    Seems like weak knee litigation tactics.

    Put on your big-boy-trial-boots and step in the arena!

  3. I think the only reason to compel mediation is if you think the lawyer, as opposed to the client, is pushing the litigation forward. So mediation would give you a chance to speak directly to the client, and not have your message filtered or diluted through a lawyer who wants to keep billing.

  4. Alan Rosenthal.

    A client's worst nightmare.

    Talk about a used car salesman.


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