Meet and Confer

The “meet and confer” process is most often associated with a contractual obligation identifying it as the first step in a mandated dispute resolution process. The usual meet and confer provision requires representatives (with full authority to resolve the conflict) to meet and exchange opinions and information with the goal of either resolving or narrowing the issues in dispute.

Depending upon the contractual provision, the parties’ “meet and confer” requirement may also call for the presence of a third party, such as a mediator, to assist the parties in addressing the issues in dispute (often referred to as “Real Time Mediation”). A real time mediation provision is becoming an increasingly common tool in the commercial/business setting.

Courts have a long history of requiring parties or their attorneys to “meet and confer” on any number of pending disputes, although most involve discovery and other non-dispositive motions. In some instances courts have also required the parties to secure the assistance of a third party to help address these disputes in a manner similar to “real time mediation,” not as a fact-finder, but as a mediator who helps parties identify solutions to their contested issues. If the parties at the initial case management conference are required to identify a mutually acceptable neutral at the outset of the dispute, the court will often designate that neutral to assist the parties in addressing these preliminary disputes throughout the course of the litigation. If this process is pursued, the court will only become involved in ruling on the contested matter if it cannot be fully resolved during the meet and confer or the facilitated meet and confer.

The discussions can be most productive if confidentiality protections are important to the parties and the court is only advised of the agreements, if any, reached at the meet and confer.

Indications for consideration:

  • The parties and/or their counsel have difficulty dealing with each other or effectively communicating on pre-trial matters
  • There exists an interpersonal or professional conflict between the parties or counsel that creates “needless” disputes on non-dispositive matters
  • The court desires to minimize future motion practice requiring court attention and judicial resources by appointing a neutral who will facilitate communications between the parties
  • The litigation is complex and will require significant judicial resources on non-dispositive matters and narrowing the issues before court intervention would be helpful
  • Improve communications between the parties and counsel as a precursor to mediation

Timing

The parties select a mutually agreed upon neutral very early in the case who may develop a good working relationship and cultivate mediator credibility and trust prior to a mediation that addresses global resolution of the dispute.

The parties are referred to this process by the court during the course of litigation as appropriate.