Court ordered mediation, where does that leave us?


Providence County Superior Court Judge Michael Silverstein Ordered both parties to participate in mediation. Said mediation needs to take place prior to a status hearing to be set for February 9th of this year, which was the time designated by the Court for a status hearing. It means that both parties to the suit are now forced by Court Order to the negotiating table to come up with some kind of agreement. Mandatory Court ordered mediation is not binding until and unless both parties enter into a “voluntary” agreement. This is just a method of the Court (really a trend across the nation to reduce litigation) prior to both sides spending money on discovery.

The exciting part of this is that maybe just maybe both parties will “get real” and come up with an early-exit-monetary-solution. In most situations this particular form of alternative dispute resolution at least becomes a beginning point for the negotiation. It lets both parties hear from a third party who if doing it correctly will evaluate the positions of the opposition and explore weaknesses of the respective positions. This usually allows the representation of each side, say “I told you so.” By that I mean, Counsel for a party may tell their client over and over that a particular part of the case is “flawed or weaker than they understand it to be.” Hearing that fact from someone that has no “dog in the fight” tends to resonate better than coming from the parties own counsel. As such, parties now may evaluate the case with a different perspective. This is beneficial in the ultimate resolution of the matter even if it isn’t resolved at the time of the mediation.

Right now the starting settlement position is: Big East, WVU remains a participant in the conference for 27 months from date of announcement of departure. WVU’s position, we paid half of agreed 5 million dollar exit fee and we shall participate in Big XII in July of 2012. Those two positions seem to be very far apart, however they can be a starting point for negotiation. Yours truly has been in negotiations wherein the parties were extremely far apart at the beginning of mediation and found resolution at the end of mediation, or very soon thereafter. Likely, a successful mediation would mean that both parties leave the negotiation with a resolution that leaves a bad taste in the parties’ respective mouths, but the key is that they leave with a resolution. Even if they don’t leave with a resolution at the end of mediation it is likely that the parties will have new positions from which to negotiate, positions which, can ultimately lead to the end of litigation. All of which, is a good thing.

Of course they can leave the mediation with the knowledge that more “discovery” is necessary to “sell” a particular point to one or both of the parties. If this is the case, then we shall begin to see the discovery flow. And the exposure of West Virginia, the Big East, and its member schools shall begin in earnest. Here’s to hoping that the mediator is an engaging one who will help to bring this matter to an end.

Stay tuned!

Da Geek