ADR Systems recently hosted a roundtable discussion for our panel of senior mediators and arbitrators. The event focused discussions on pre-mediation conferences, when parties and their mediator can speak together or separately in ex parte conversations.

Very often, these preliminary conferences help the parties resolve behind-the-scenes issues that could impact the success of the mediation later. Additionally, through them, mediators can clarify logistics (like attendance) and learn information about the case that goes beyond the claims, discovery and theories of liability. How do you make the most of pre-mediation time spent with the parties? Our neutrals gathered together to explore that multi-answer question.

“Good pre-mediation is good communication,” said Hon. Stuart A. Nudelman, (Ret.), senior mediator and arbitrator at ADR Systems, who led the discussion. “I always tell attorneys that ex parte here really means what it means: You can tell me anything that you think I should know to facilitate the mediation effectively.”

Judge Nudelman further extolled the merits of parties sharing submissions. The goal is to settle, he explained. “Why hide information from the other side if both parties are here to negotiate a resolution? Why not start out with a full-faced demonstration of willingness to close the matter?”

By way of his point, Judge Nudelman seeks to help parties avoid a common hurdle in the negotiation of nearly any deal: Information asymmetry, when one or both sides lack—or suspect that they lack—vital information about the deal forming before them.[1] Parties on either side may balk at and rebuff an offer out of hand because they lack information that contextualizes the rationale behind it. Suspicions may then rise. Distrust may follow. Tensions may compound. Gamesmanship may be presumed. And settlement may be delayed—all because of a lack of information, a lack of understanding. By sharing submissions from the outset, parties help themselves understand each other better. Then, both sides can engage in a more “free, open, truthful exchange”[2] and do what they came to mediation to do: Settle.

Sharing submissions is not the only crucial recommendation that our neutrals give to parties during pre-mediation conferences. Hon. Kay M. Hanlon, (Ret.), senior mediator and arbitrator at ADR Systems, put it quite simply: “Each side needs to know who’s coming.”

Attendance is more consequential than one may think. The attendance of certain persons relevant to the dispute—because of their job title, settlement authority or relationship with the other side—can signal respect and seriousness about the dispute.

“I mediated a fraught business dispute some months ago,” explained Judge Hanlon at the event. “During a pre-mediation call, an attorney told me the CEO of the company he represented wasn’t coming to the mediation. I responded, ‘Does the other side know that? Because I can tell you theirs’ is.’ It turns out the other side didn’t know, and if they continued to not know, it would have been seen as an insult in this case. It would have blown up the whole mediation on the day of before it even began.”

In the end, both CEOs attended the mediation, and the matter settled. If the parties had not communicated about who from their side would attend the mediation—and if that they had not participated in pre-mediation calls at all—they would not have settled. The dispute would be on its way to trial, costing both sides more and more time, money, and emotional energy.

Pre-mediation, therefore, is an important precursor to settlement—so much so that ADR Systems has developed our Case Ambassador Program, through which parties engage the services of a mediator—who acts as a case ambassador—well in advance of the mediation to resolve countless issues that could prevent or delay settlement on the day of mediation.

Learn more about pre-mediation in general.

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Hon. Kay M. Hanlon, (Ret.) has expertise in resolving personal injury actions such as medical malpractice, mass torts and product liability, as well as commercial actions such as legal malpractice, eminent domain and subrogation. As a jurist and neutral, Judge Hanlon is always prepared and ready to listen attentively. Her open and friendly demeanor is known throughout the legal community. Her personality is tailor-made for her work as a mediator and arbitrator.

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Hon. Stuart A. Nudelman, (Ret.) is a senior mediator and arbitrator at ADR Systems. He is highly experienced in commercial, personal injury and complex construction matters, among many others. He has resolved more than 2,000 mediations and arbitrations throughout the United States in the past eight years.

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ADR Systems, It’s Settled.®

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[1] See Subramanian, Guhan, and Michael Klausner. Deals: The Economic Structure of Business Transactions. Harvard University Press, 2024, p. 18.

[2] Id. at 13.