The Last-Minute Report

On several occasions, counsel has appeared for mediation with an expert report dated the day before. Often this attorney has not served a copy of the report on opposing counsel. Nor did the advocate attach this document to the mediation brief.

What effect does this report have at mediation? I have never seen a last-minute report have a beneficial effect. Rather, it really ticks off the other side. Sometimes, the recipient threatens to cancel the mediation. My job is then to calm everyone down so we can negotiate.

The contents of the last-minute report are never a surprise. The report restates the author’s or some other expert’s opinion that bolsters that party’s position. I tell mediation participants that we will assume the opposing party could get an opposing report which fully bolsters their position. If the case does not settle, that will surely happen. For purposes of the mediation, however, the value of that new report is zero, nada, zilch.

Moral of the story: If that expert or that report was not obtained in the course of litigation, don’t bother getting it the day before mediation.