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An e-Mediation is a confidential mediation used for the purpose of resolving disputes arising from electronically stored information or e-discovery. Litigants hire the services of an e-Neutral, called an e-Mediator, to facilitate the resolution of the e-discovery dispute(s). E-Mediation can be held at whatever stage a dispute arises as a result of a party's claim or lawsuit. E-Mediation may be appropriate when the duty to preserve attaches, but before a lawsuit has been filed. E-Mediation can be conducted as part of the "meet and confer" to create a discovery plan or the parties ask the court to incorporate e-Mediation in its Rule 16 Scheduling Order and requiring the parties to attend an e-Mediation if a dispute arises. If an e-Mediation is not used to facilitate a discovery plan, then e-Mediation can be used on an issue-by-issue basis during the discovery phase. E-Mediation is the process litigants can use to facilitate the resolution of e-discovery disputes in a cost-efficient manner.
E-Mediation has multiple benefits to the litigants and the court. For examples, e-Mediation helps the parties
- self-direct workable solutions,
- define scope parameters,
- determine relevancy
- determine form(s) of production,
- develop mutually acceptable search methodologies,
- create timelines for production or “e-depositions,”
- propose confidential compromises,
- create efficiencies with a mutual discovery plan,
- set guidelines for asserting violations of the plan (non-waiver agreements),
- create boundaries for reasonable and proportional preservation,
- avoid spoliation pitfalls,
- manage protection of privileged information,
- maintain credibility with the court,
- avoid court-imposed sanctions, and
- allocate costs.
You should become an ACESIN Fellow because ACESIN is the only organization in the country, in fact the world, that allows you to be recognized as an e-Neutral that is qualified in ADR and e-Discovery. ACESIN is the "go-to" cite for judges, lawyers, corporate counsel, and parties to find an e-Neutral that fits the needs of a case. ACESIN is a vehicle for each e-Neutral to manage his or her own profile to better promote his or her legal services in this arena. At the same time, an ACESIN Fellow benefits from ACESIN's commitment to not only network its e-Neutrals, but promote the use of its e-Neutrals in this cutting-edge field. As you expand your practice into a new market, you will see that the benefits of being an ACESIN Fellow pay for themselves. Don't wait! Join now by clicking on the Become a Fellow Tab.
If you are a judge, lawyer, party, or in-house counsel, then you should join ACESIN as an Affiliate to have access to ithe ACESIN Directory of e-Neutrals for FREE. The ACESIN Directory is the only directory of e-Neutrals in the world. The complexities and costs of e-discovery demand new innovative solutions for handling e-discovery. Using an e-Neutral, whether as an e-Mediator or special master, is one of the best ways to manage e-discovery efficiently. ACESIN is the only organization that puts e-Neutrals at your fingertips. The ACESIN Directory is searchable by name, state and/or practice area. These categories help you identify the best e-Neutral for the needs of the case. Without the ACESIN Directory, parties are struggling to find qualified e-Neutrals that have the requisite training and experience in ADR and e-discovery. Why wait to register? Register now by clicking on the "Become an Affiliate Tab."
The needs of a case vary widely and counsel should evaluate which process is in the client's best interest. Generally speaking, if there is such breakdown in communication that the parties cannot even agree that the sky is blue, then more likely, the parties need a special master to act as a referee and "make the calls." However, if the parties still maintain a level of civil communciation, then e-Mediation may be more appropriate. E-Mediation may protect the parties from losing credibility with the court. On the other hand, the court may prefer to assign certain duties to a special master. Alternatively, the court may direct which process it believes is appropriate for the dispute(s) at issue. The parties should not expect an e-Mediator to evolve into the role of a special master; and a special master should be cautioned about the appropriateness of acting as an e-Mediator if confidential communications might be divulged.
An e-Mediator is a facilitator bound by the applicable state's mediation rules. Offers of compromises are afforded the same confidentiality as settlement offers are afforded in a tradition settlement mediation. The e-Mediator is bound by confidentiality as defined by the applicable state mediation rules; therefore, the e-Mediator does not report to the court like a special master. An e-Mediator is allowed to develop creative strategies based on confidential communications by the litigants. Private caucus allows parties to include in-house counsel and/or IT/litigation support representatives in the decision-making process without the requirement of "taking testimony."
A special master appointed under Rule 53 may serve several functions for the court. A special master may hold hearings, take testimony and report to the court. A special master is permitted to adjudicate disputes, while an e-Mediator does not. Most commonly, ex parte communications are not permitted. This process is more formal than an e-Mediation.