Mediation is widely regarded as one of the most valuable tools available to lawyers seeking to resolve disputes before they reach trial.
Bringing in a neutral third party can help all sides assess their positions more realistically and break through impasses that counsel alone cannot overcome.
However, formal mediation carries significant drawbacks, including high costs, demanding schedules, and the logistical complexity of coordinating lawyers, clients, and insurance representatives.
Before committing to that process, lawyers should sometimes consider a simpler alternative: getting counsel and decision-makers on a call to explore resolution themselves.
These informal settlement conferences require no mediator, no formal mediation statement, and none of the ceremony that typically accompanies a traditional mediation session.
The format is straightforward — counsel for each side and the relevant principals join a telephone or video conference, lawyers briefly outline their positions, and everyone explores whether a workable resolution exists.
Writing in Above the Law, attorney Jordan Rothman notes he has participated in a number of these informal settlement conferences over the years, describing the format as extremely simple.
Perhaps the most compelling argument in favour of the informal approach is cost, given that mediators, particularly retired judges and other highly sought-after neutrals, can charge substantial sums for their services.
An informal settlement conference avoids those costs entirely, making it an attractive first step before parties commit to the expense of formal proceedings.
That said, the informal approach will not suit every dispute, and there are situations where a skilled mediator brings something opposing counsel simply cannot provide.
A mediator can reality-test positions in a way that opposing counsel usually cannot, and that kind of challenge can shift a negotiation in ways that direct conversations between lawyers may not achieve.
Even when an informal conference does not produce a settlement, it can surface useful information that makes any later formal mediation more productive and focused.
Rothman argues that lawyers sometimes default to familiar procedures simply because that is how disputes are usually handled, rather than asking whether a simpler path might serve their clients better.
In many cases, formal mediation is entirely worthwhile, and the structure it provides is precisely what a difficult dispute needs to move towards resolution.
But in others, the best settlement tool is not another professional or another submission, but simply getting the right people talking directly to each other without ceremony or added expense.