When I started law practice in the mid-1960s the word 'mediation' was not commonly used. I am not sure I heard the word more than a couple of times while in law school at Hastings College of the Law, University of California. If I did, it meant something different than it means today – some type of evaluative process that was not necessarily related to bargaining to get a settlement.
As a young trial lawyer, the common practice was that settlement was not really discussed until a mandatory settlement conference right before trial. Before that if a case settled it was because the attorneys did so, or the insurance adjuster jumped in and negotiated the file directly with the plaintiff's lawyer.
The words alternate dispute resolution or ADR were not in our vocabularies. Private dispute resolution services did not exist. Judges were elected and appointed to the bench and stayed to retirement. There were no jobs as private mediators to lure them away or provide employment after retiring. Frankly, as I look back on this, we were wasting a valuable resource in good settlement judges leaving the bench and essentially retiring from the profession altogether.
Now, the situation is much different. Private dispute resolution services and full time mediators abound. There are excellent training courses for mediators and new rules for governing that practice. Certification will soon be available and standards will be set. While it seems that there are more mediators than lawyers, the litigation process seems to demand this resource for dispute resolution as an alternative to plodding through the litigation machinery at the courthouse.
The mediation process is an opportunity – a time for you, as the legal representative of your client, to avoid putting your client through the litigation “mill” (aka: process) and get results. I see mediation as a definite positive process, but only if you, as the lawyer, have the right approach. I enjoy trials and arbitrations, court hearings, and appeals. But, after all these years, I get great satisfaction when I am able to get a good settlement early in the case before we incur large litigation expenses. The client has the money to begin the life restructuring process and has avoided the pressures and uncertainties of litigation, which more often than not would only add to the emotional injury already caused by a serious accident, injury or illness which led to the litigation in the first place.
To put this in perspective, we are talking about how to get your case resolved early in the more formalized process of mediation S the voluntary process in which the parties agree to conduct negotiations of a dispute using a neutral intermediary in a non-binding process. The mediator has no power to decide anything. The job of the mediator is to try to get the parties to agree on the terms of resolving this conflict and disputed matter. While you are an advocate in this process, the advocacy skills that are involved are much different than those that would be used in the courtroom.
Also, lawyers – and courts -- are doing a better job of managing litigation, at least in the more complex cases, so that resolution and settlement are part of the planning and case management mechanism. That is good because it forces the parties to thing about where they are going, what the results might be, and how much it will cost. That is, a cost/benefit analysis is part of the initial planning process and evaluation of the case.
In order to get good results in mediation, there are basic principles that I have found should be followed.
Here they are:
Principle 1: Understand What a Mediation Is All About
Principle 2: Prepare Your Client for the Mediation Process
Principle 3: Put the Pressure on the Defendant to Come to the Mediation Table
Principle 4: Get the Information You Need to Mediate
Principle 5: Get to Mediation Early, Not Late
Principle 6: Use Your Experts
Principle 7: Select the Mediator Best Suited for Your Case
Principle 8: Prepare the Mediator
Principle 9: Be the Diplomatic Advocate at the Mediation: Make “Love” Not War
Principle 10: Know the Numbers and When the Best Deal Is on the Table
Effective resolution of disputes should be our goal. Perhaps that is trial, but more often it will be a negotiated result. And, in most of those cases, from what I can see, there is a mediator who will assist the parties to that end.
I encourage all to make sure that all cases are tested in the negotiations arena.
Wednesday, May 26, 2010
HOW HAS THE ECONOMIC DOWNTURN AFFECTED THE MEDIATION PROCESS?
Have our settlement strategies and alternative dispute resolution programs, which are now part of our courts’ case management system, been impacted by the economic downturn? Do the circumstances pose new hurdles to getting cases resolved by mediation?
I have been moderating a series of Webinars on mediation related topics aimed at the trial lawyer and mediation advocate. I have been joined by several colleagues, including my long time friend, Martin Quinn, who is a full time mediator with JAMS in San Francisco. Martin is an outstanding mediator who came to his second career some 10 or so years ago after serving as a prominent litigator in San Francisco with two of its top law firms. Martin has been a mediator in a number of our firm’s cases.
We discussed a number of issues a few weeks ago relating to the impact the recession has had on the settlement process. I realized several observations as a result of our discussion and our dialogue beforehand. These are my views only, and I would not presume to represent Martin Quinn as agreeing with these comments. The information is anecdotal, i.e. it is based on what I have seen and also what I suspect may be the case. I have not done a survey, except informally with many of my colleagues. Here are a few of my observations:
• Has the recession affected how mediations are conducted? From what I hear, it has. Cases are a bit tougher to settle because carriers are cautious about cash. No surprise there as from what I have read, most everyone, even the well to do, are not spending as much and are more cautious in buying. That means that in mediation, a plaintiff has to have the leverage and information to persuade the insurer to pay monies on behalf of its insured now rather than later. Defense costs are a factor as this represents an ongoing expense that can be avoided. Perhaps more emphasis must be placed on this aspect, as well as the exposure.
• Are litigants showing any reluctance to go to mediation? Are they delaying the process? It appears that this has been occurring. Some defendants are not opposed to mediation but want to wait until there is some turn in the economy to ease the uncertainty that a turn around is headed its way. Earlier in the year, defendants were known to stall in agreeing to mediation if not faced with an immediate trial date, saying “maybe late summer or early fall.” So we are almost there; will the defendant be more willing to mediate now?
• Are the parties engaging in more direct negotiations rather than using mediation? I have heard that is the case. My experience is, however, that mediation is still the preferred mechanism for resolving disputes, and I have seen no change in that approach in the cases we have settled this year.
• How has the recession affected a plaintiff’s practice; what am I seeing as to the a) willingness of defendants to go to mediation, and b) defense counsel’s willingness to recommend mediation? I think I have covered this. But I also believe the reluctance is easing a bit. Still, it is important to have your case ready for mediation before approaching the subject and be prepared to use all leverage you can to bring defendants to the mediation table. You also need to do the economic analysis for settlement vs. trial. “Cash is King,” as the saying goes.
• How are litigants approaching the cost of mediation? Are there deals to be cut with mediators? I have not seen any mediators offer or respond to proposals for reduced fees. But I have noted that pre and post-mediation billings are often underbilled or “light.” My colleagues who are mediators, however, tell me that business is business and “deals” are to be made for reduced fees.
• Are the parties cutting back on discovery before mediation to save money, hoping the case will settle? I have not seen this. Indeed, in some cases I have seen defense firms want to hasten certain discovery before the mediation. No comment.
• How has the recession affected the mediation process? Are cases tougher to settle? Does it take longer? See above.
• Impact on multiple defendant cases? Are they tougher to settle? These are always tougher to settle. My experience this year is that the process takes longer with multiple defendants and that it is more difficult to get the defendants to split the settlement “pot” among themselves. Mediators have told me this also.
• What are your suggestions for getting cases to mediation with the economy likely not to show much real, sustained recovery until sometime in 2010? If you are trying to get your case settled early, that may be difficult because you may not have the leverage and the motivation by the defendant and its counsel may not be present. Thus, it may take more work to posture the case for mediation; that is, written discovery, document review and some depositions may need to be taken to gain the advantage and information which will persuade the defendants that now is the time to get the parties to the table. Also, getting a trial date as quickly as possible is important to put pressure on the defendants to settle. That always helps.
I have been moderating a series of Webinars on mediation related topics aimed at the trial lawyer and mediation advocate. I have been joined by several colleagues, including my long time friend, Martin Quinn, who is a full time mediator with JAMS in San Francisco. Martin is an outstanding mediator who came to his second career some 10 or so years ago after serving as a prominent litigator in San Francisco with two of its top law firms. Martin has been a mediator in a number of our firm’s cases.
We discussed a number of issues a few weeks ago relating to the impact the recession has had on the settlement process. I realized several observations as a result of our discussion and our dialogue beforehand. These are my views only, and I would not presume to represent Martin Quinn as agreeing with these comments. The information is anecdotal, i.e. it is based on what I have seen and also what I suspect may be the case. I have not done a survey, except informally with many of my colleagues. Here are a few of my observations:
• Has the recession affected how mediations are conducted? From what I hear, it has. Cases are a bit tougher to settle because carriers are cautious about cash. No surprise there as from what I have read, most everyone, even the well to do, are not spending as much and are more cautious in buying. That means that in mediation, a plaintiff has to have the leverage and information to persuade the insurer to pay monies on behalf of its insured now rather than later. Defense costs are a factor as this represents an ongoing expense that can be avoided. Perhaps more emphasis must be placed on this aspect, as well as the exposure.
• Are litigants showing any reluctance to go to mediation? Are they delaying the process? It appears that this has been occurring. Some defendants are not opposed to mediation but want to wait until there is some turn in the economy to ease the uncertainty that a turn around is headed its way. Earlier in the year, defendants were known to stall in agreeing to mediation if not faced with an immediate trial date, saying “maybe late summer or early fall.” So we are almost there; will the defendant be more willing to mediate now?
• Are the parties engaging in more direct negotiations rather than using mediation? I have heard that is the case. My experience is, however, that mediation is still the preferred mechanism for resolving disputes, and I have seen no change in that approach in the cases we have settled this year.
• How has the recession affected a plaintiff’s practice; what am I seeing as to the a) willingness of defendants to go to mediation, and b) defense counsel’s willingness to recommend mediation? I think I have covered this. But I also believe the reluctance is easing a bit. Still, it is important to have your case ready for mediation before approaching the subject and be prepared to use all leverage you can to bring defendants to the mediation table. You also need to do the economic analysis for settlement vs. trial. “Cash is King,” as the saying goes.
• How are litigants approaching the cost of mediation? Are there deals to be cut with mediators? I have not seen any mediators offer or respond to proposals for reduced fees. But I have noted that pre and post-mediation billings are often underbilled or “light.” My colleagues who are mediators, however, tell me that business is business and “deals” are to be made for reduced fees.
• Are the parties cutting back on discovery before mediation to save money, hoping the case will settle? I have not seen this. Indeed, in some cases I have seen defense firms want to hasten certain discovery before the mediation. No comment.
• How has the recession affected the mediation process? Are cases tougher to settle? Does it take longer? See above.
• Impact on multiple defendant cases? Are they tougher to settle? These are always tougher to settle. My experience this year is that the process takes longer with multiple defendants and that it is more difficult to get the defendants to split the settlement “pot” among themselves. Mediators have told me this also.
• What are your suggestions for getting cases to mediation with the economy likely not to show much real, sustained recovery until sometime in 2010? If you are trying to get your case settled early, that may be difficult because you may not have the leverage and the motivation by the defendant and its counsel may not be present. Thus, it may take more work to posture the case for mediation; that is, written discovery, document review and some depositions may need to be taken to gain the advantage and information which will persuade the defendants that now is the time to get the parties to the table. Also, getting a trial date as quickly as possible is important to put pressure on the defendants to settle. That always helps.
DOES YOUR ADVERSARY AND HIS/HER CLIENT HAVE THE RIGHT ATTITUDE ON MEDIATION DAY?
What do you know about the other side’s willingness to settle the case and interest in real resolution? He/she may simply be interested in getting “free discovery” or in trying to convince you and your client to take less than the case’s “good faith” value.
Obviously if the opposition – either the client or client representative (aka: claims person) or his/her lawyer—is not fully engaged in the process of mediation, the chances for wasting the day are high. To avoid this, find out beforehand the temperature of your opposition. Will he/she encourage a focused mediation?
Here are some ways to get a read of the folks on the other side:
Direct Contact: There is nothing wrong with a face-to-face discussion or a phone call to discuss how best to approach the mediation. Too often we rely on email to conduct our case discussions. Email is fine for routine matters and confirming dates for case activity and calendar items. I, however, am a bit “old school”; I like to talk to counsel personally face-to-face or by phone to gauge the level of interest. There may be some puffing in the exchange, but if you have a professional relationship with your adversary, you should be able to break through and determine if there is a real interest in settlement.
Talk to the Mediator: Most mediators I know want to settle cases. It is how they gain a reputation as a “closer.” If you have doubts about the sincerity of your opposition in reaching a reasonable settlement, and direct contact is not in the cards, talk to the mediator. I have found mediators willing to contact opposing counsel and have a private and preliminary discussion to test the waters. It may be that scheduling the mediation is an issue, as your opposition may have other work, may be preoccupied with other matters, or simply cannot reach his/her client. Here, a later date than you had hoped for may be preferable.
Talk to Others: Find out who has mediated with your adversary previously and call them. I often use a listserv for the San Francisco Trial Lawyers Association (but make sure your adversary is not tapped into it) or I call colleagues to learn if anyone has some background on my opposing attorney and his/her client.
Read the “Tea Leaves”: Sometimes you can discern an adversary’s interest in a mediated result by reading the papers in your case. If there is hostility, mediation may calm the waters and focus the parties on resolution rather than further fighting. Or it may reveal an underlying resistance that you have to overcome. Briefs or discovery responses can reveal hostility, bitterness, anger or other emotions that serve as a barrier to a fruitful mediation.
Put Some Pressure On: Don’t underestimate the power of pressure – significant written discovery requiring your opposition to reveal its case, focused requests for admission that require the other side to admit or deny key facts (and reveal the facts about any denial), or deposition notices can gain your adversary’s attention. These tactics can result in an enhanced interest in negotiations. Sustained pressure can get a case to mediation quickly, but that pressure must be consistent. If you serve discovery, be prepared to “meet and confer” and file motions to compel if there is unjustified resistance or meritless objections or evasive responses.
Write a Letter or Email: Face-to-face or direct contact may be too aggressive. If so, an email or letter inquiring about a real interest in negotiating the case is worth a try.
Past Experience: Past experience with the defendant or opposing counsel may be telling. We have had cases against various insurance companies on more than one occasion. I have a good sense for how some of them approach litigation— some are willing to explore resolution at an early stage, others are not. Often they use the same lawyers, so past experience in those cases can give you a good read on the prospects for a successful mediation and the timing for such. The timing may be early, after some discovery (such as your client’s deposition has been taken), or after a limited exchange of information.
Check Out Other Mediations Involving Counsel or Parties: I have mediator friends who have experience with insurance company defendants. They often discuss what they’ve heard about those companies’ attitudes and approaches to mediation, without revealing confidences. I frequently talk to colleagues about other law firms and those firms’ dealings with certain clients we see in our financial litigation, wrongful death and injury cases in which insurance companies are heavily involved (and other litigation in which there are repeat defendants).
These are just a few thoughts on assessing how your adversary and his/her client may approach mediation. It is a good idea to assess and discuss this with your client before committing to the process.
Obviously if the opposition – either the client or client representative (aka: claims person) or his/her lawyer—is not fully engaged in the process of mediation, the chances for wasting the day are high. To avoid this, find out beforehand the temperature of your opposition. Will he/she encourage a focused mediation?
Here are some ways to get a read of the folks on the other side:
Direct Contact: There is nothing wrong with a face-to-face discussion or a phone call to discuss how best to approach the mediation. Too often we rely on email to conduct our case discussions. Email is fine for routine matters and confirming dates for case activity and calendar items. I, however, am a bit “old school”; I like to talk to counsel personally face-to-face or by phone to gauge the level of interest. There may be some puffing in the exchange, but if you have a professional relationship with your adversary, you should be able to break through and determine if there is a real interest in settlement.
Talk to the Mediator: Most mediators I know want to settle cases. It is how they gain a reputation as a “closer.” If you have doubts about the sincerity of your opposition in reaching a reasonable settlement, and direct contact is not in the cards, talk to the mediator. I have found mediators willing to contact opposing counsel and have a private and preliminary discussion to test the waters. It may be that scheduling the mediation is an issue, as your opposition may have other work, may be preoccupied with other matters, or simply cannot reach his/her client. Here, a later date than you had hoped for may be preferable.
Talk to Others: Find out who has mediated with your adversary previously and call them. I often use a listserv for the San Francisco Trial Lawyers Association (but make sure your adversary is not tapped into it) or I call colleagues to learn if anyone has some background on my opposing attorney and his/her client.
Read the “Tea Leaves”: Sometimes you can discern an adversary’s interest in a mediated result by reading the papers in your case. If there is hostility, mediation may calm the waters and focus the parties on resolution rather than further fighting. Or it may reveal an underlying resistance that you have to overcome. Briefs or discovery responses can reveal hostility, bitterness, anger or other emotions that serve as a barrier to a fruitful mediation.
Put Some Pressure On: Don’t underestimate the power of pressure – significant written discovery requiring your opposition to reveal its case, focused requests for admission that require the other side to admit or deny key facts (and reveal the facts about any denial), or deposition notices can gain your adversary’s attention. These tactics can result in an enhanced interest in negotiations. Sustained pressure can get a case to mediation quickly, but that pressure must be consistent. If you serve discovery, be prepared to “meet and confer” and file motions to compel if there is unjustified resistance or meritless objections or evasive responses.
Write a Letter or Email: Face-to-face or direct contact may be too aggressive. If so, an email or letter inquiring about a real interest in negotiating the case is worth a try.
Past Experience: Past experience with the defendant or opposing counsel may be telling. We have had cases against various insurance companies on more than one occasion. I have a good sense for how some of them approach litigation— some are willing to explore resolution at an early stage, others are not. Often they use the same lawyers, so past experience in those cases can give you a good read on the prospects for a successful mediation and the timing for such. The timing may be early, after some discovery (such as your client’s deposition has been taken), or after a limited exchange of information.
Check Out Other Mediations Involving Counsel or Parties: I have mediator friends who have experience with insurance company defendants. They often discuss what they’ve heard about those companies’ attitudes and approaches to mediation, without revealing confidences. I frequently talk to colleagues about other law firms and those firms’ dealings with certain clients we see in our financial litigation, wrongful death and injury cases in which insurance companies are heavily involved (and other litigation in which there are repeat defendants).
These are just a few thoughts on assessing how your adversary and his/her client may approach mediation. It is a good idea to assess and discuss this with your client before committing to the process.
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