MORE ON THE CASE FOR MEDIATION: UNDERSTANDING THE PROCESS BETTER
By: Guy O. Kornblum, Esq.
We all realize that mediation as a dispute resolution mechanism has become part of the litigation process in a big way. It should be factored into your client’s Litigation Management Plan. Few cases are not mediated at some point these days. We all have much to learn about this process. The new LCA ADR Institute is an effort to promote a better understanding of the process. The program at the Fall Meeting in October is a first step in creating a forum for a dialogue among the Fellows about how we can better represent our clients in mediations, and take advantage of what it has to offer as a means of negotiating a resolution of disputes in which our clients are involved.
The idea that parties can meet and discuss, in a confidential setting, alternatives for resolving a dispute – large or small – is welcome because full blown litigation, and even working up a case for trial is an expensive and time consuming process as we all know. Economics alone dictates that we explore resolution at a mediation, which provides an opportunity for a day long or more discussion with a neutral who is devoting his or her time to facilitating a settlement. This a far cry from the eve of trial settlement conferences that we used to experience in the “old days” when judges did not manage their calendars, ADR was not even in its gestational period, and sitting judges had precious little time to learn about a case until you entered the courtroom for trial.
The ADR process – particularly mediation – is consistent with the movement for a more cooperative litigation process in which collaborative efforts are being encouraged. See, e.g. “The Sedona Conference Cooperation Proclamation Process,” The Sedona Conference Working Group Series, published in 2008 (www.thesedonaconference.org). As is stated in the report, “The Sedona Conference launches a coordinated effort to promote cooperation by all parties in the discovery process to achieve the goal of a just, speedy, and inexpensive determination of every action.”
When I started law practice in the mid 1960's, 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. 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. Often the first real opportunity to negotiate a case was the “Mandatory Settlement Conference,” which later became part of the court rules, and which ordinarily was held quite close to trial. Other than direct negotiations, there was little involvement by the court in settlement talks before then. At that time there were no Case Management Conferences.
Courts were ordinarily not very active in the case until a Pre-trial Conference was held, at which time the court might inquire about what settlement talks have taken place, and if the parties were interested in a judge, other than the trial judge, meeting with them to see if some settlement efforts could result in a resolution. The federal courts were required to provide for ADR procedures in civil actions in the Alternative Dispute Resolution Act of 1988 (28 U.S.C. sec. 651 et seq.). Prior to that, in 1985, California provided for Mandatory Settlement Conferences in Rule 222, California Rules of Court.
The words “alternate dispute resolution” or “ADR” were not in our vocabularies. Private dispute resolution services did not exist. Judges were elected or appointed to the bench and stayed to retirement. They did not leave these careers until that time. 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 for mediators may be around the corner. Standards have been set for mediators in the conduct of a mediation. (See, e.g., Cal. Rules Court 3.850 et seq.) While it seems that there are more mediators than lawyers, the litigation process seems to demand this resource for dispute resolution.
We, as lawyers, must rise to the occasion. We need to do a better job of managing litigation especially in the more complex cases, so that resolution and settlement are part of the planning mechanism. This forces the parties to think 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.
One of the very important skills of a true trial lawyer or “litigator” is to know how to leverage a case to the point at which the parties are motivated to discuss settlement. I describe this point as a “plateau for resolution.” That is, it is a point where the parties have an opportunity to see what has occurred, evaluate their respective positions, and then look down the line at what will be done as the case progresses towards trial and a “forced resolution.” Does your client want to proceed? Does it know the risks? Is it aware of the significant costs involved? What is the potential settlement range versus the “net” that is likely to result if the case is tried? Recognition of this plateau and then communicating with the client about the case is an essential ingredient to serving the client’s needs. It is our duty to lead our clients through this process of selecting the manner in which the client wishes to reach a resolution.
Consider how it would be if in every case at the outset, a) the case must be set for a mediation no later than 6 months after filing the complaint, unless good cause is shown why this date should be extended, and b) the parties must file with the court a discovery plan that has the objective of allowing them to conduct sufficient discovery to be prepared to discuss settlement at mediation. The federal courts and some state courts have pieces for this in place, but how would our cases be processed if what I have proposed were a firm rule in the court system, which would require a motion on good cause to alter? The pressure would be on, cases would be worked up quickly, and the parties would have a much earlier dialogue than we likely experience now.
As part of the learning process, I highly recommend you obtain and read:
R. Kiser, “Beyond Right and Wrong: The Power of Effective Decision Making for Attorneys, and Clients,” Springer Science+Business Media, www.springer.com (2010);
J. MacFarlane, “The New Lawyer: How Settlement is Transforming the Practice of Law,” UBS Press, www.ubcpress.ca.
Monday, August 23, 2010
Monday, July 12, 2010
The Modern Approach to Resolving Disputes-- The Case for Mediation
“The odds of a plaintiff's lawyer winning in civil court are two to one against. Think about that for a second. Your odds of surviving a game of Russian roulette are better than winning a case at trial. Twelve times better. So why does anyone do it? They don't. They settle. Out of the 780,000, only 12,000 or 1.5 percent ever reach a verdict. The whole idea of lawsuits is to settle, to compel the other side to settle. And you do that by spending more money than you should, which forces them to spend more money than they should, and whoever comes to their senses first loses. Trials are a corruption of the entire process and only fools who have something to prove end up ensnared in them. Now when I say prove, I don't mean about the case. I mean about themselves.”
Lawyer Jan Schlictman, played by John Travolta, in the movie “A Civil Action.”
Anyone who has been involved in a lawsuit as a dispute resolution mechanism knows what a laborious and often mysterious process it can be. But the process is changing. The public is demanding a user-friendly system that encourages litigants to enter into early discussions about resolution of their dispute and avoid the time, expense and emotional drain of protracted litigation.
It is incumbent upon us as client representatives to promote mediation as a desired alternative to trial, i.e. mediation instead of trial. We need to educate our clients about how this process works and show that there are advantages in this approach to dispute resolution.
The approach to handling a client’s cause and managing litigation has changed. Efforts are in process to develop a more cooperative approach to litigation, particularly during discovery. The Sedona Conference Cooperation Proclamation represents “a coordinated effort to promote cooperation by all parties to the discovery process to achieve the goal of a ‘just, speedy, and inexpensive determination of every action.”
The public has become intolerant of the notion of the trial lawyer as a “warrior” or “combatant.” Lawyers who work in litigation as problem solvers who can penetrate the process and assist in resolving a dispute, not perpetuating it , are what the public wants.
A settlement is the best economic day for a client, considering the present value of money, and the cost of taking a case into the pre-trial and trial states (and possibly through appeal). From the plaintiff’s perspective, the client has the use of funds now rather than the hope of some recovery later. On the plaintiff and defense sides, the costs of litigation often surprise clients, particularly if expert testimony from physicians or technical experts is needed. The fees for these experts are quite high, usually involving several hundred dollars per hour. Considering the amount of time that experts need to prepare, testify at deposition and then appear in court, several thousands of dollars can be incurred quickly by just this aspect of the case.
In my view, settlement is the ultimate victory. It takes the decision making away from a third-party – a judge or jury – and puts it in the hands of the parties. Settlement results only from consent, so a case is settled when the parties have retained control over the outcome and have carved out a result for themselves. It does not happen unless there is agreement.
Studies have shown that the parties to a dispute risk more by going to trial if they walk away from a reasonable opportunity to settle. In of hundreds of cases in which negotiations have been conducted but the parties have not settled the results reveal a party who rejected settlement often does worse at trial.
Mediation has resolution of a dispute as its objective. The parties in a mediation know they have come to resolve their differences. The intermediary or neutral – the mediator – has the sole job of accomplishing that goal. It is a dedicated forum for closure.
Over the last several years, mediation has become the more popular means of resolving disputes. Mediation is available to litigants to achieve settlement. It is often overlooked by lawyers in the beginning stages of litigation, when mediation can lead to an early— and appropriate— settlement. This is a big mistake, as it is at this early stage of litigation that the best deal can be achieved before the expense of protracted litigation.
There is a great deal of confusion among lay persons as to the difference between arbitration and mediation. These are forms of alternative dispute resolution—that is, alternatives to a trial in the courthouse. Court systems are now designed to make sure that parties are advised about these alternatives early and how they can expedite the resolution of a dispute and avoid the risks and expense (not to mention the emotional drain) of full-blown litigation. Many court systems have programs for early resolution, including the federal court in San Francisco, which has been a pioneer in these alternatives for resolving disputes without a trial.
Private mediation is a “supervised negotiation” away from the courthouse, with a trained and experienced mediator who has the skills of getting parties to talk and exchange views in an attempt to resolve their differences. This is in contrast to an arbitration in which the arbitrator actually decides the case. Our clients often do not understand the difference and it is our job to educate them on the mediation alternative to trial.
For example, the client must understand that:
• In mediation, the mediator guides the parties through the negotiation process so that any resolution comes because the parties agree.
• The mediator is not a decision maker, but a facilitator.
• The mediator is chosen by agreement only; a party cannot be forced to accept a mediator of a dispute.
• Mediators work in all aspects of litigation: complex civil cases, personal injury, professional negligence, complex insurance disputes and family law matters, particularly divorces and custody matters.
• A mediation is voluntary and is not binding. A settlement is reached only if the parties agree.
• A mediation can last from a few hours to several days (not necessarily in succession). Often the parties exchange “briefs” on their position before the mediation.
• Most important to note is that a mediation is confidential. By law, what takes place during a mediation cannot be used in the lawsuit as evidence. A trial court or jury does not hear about anything that was discussed during the mediation, nor is the subject of the parties’ respective positions at a mediation a proper subject of testimony at trial.
My experience is that the mediation process works well if certain conditions are met. First, the parties must be prepared to mediate. They must know their case well and have discussed their position with their lawyer and set some realistic goals for settlement discussions. Second, the parties must go to the mediation with a good faith desire to resolve the case. Third, a mediator must be chosen who is the right person for the case – someone whose approach to mediation fits the type of case and the parties involved. For example, if the case is volatile, then someone with a low-key style, using diplomacy more than persuasion, may be the right choice. On the other hand, if the parties are at odds, it may take someone with stature (such as a retired judge of some preeminence) to bring the parties together. And fourth, the mediator must be willing to work, to roll up the sleeves and stay the course until all settlement alternatives are explored. The basic rule is to keep the parties talking. So long as the parties are willing to communicate, there is a chance for a negotiated resolution.
As time goes by, our judicial system will rely more and more on courts and counsel directing litigants to a mediation alternative to litigation. The earlier the better.
Lawyer Jan Schlictman, played by John Travolta, in the movie “A Civil Action.”
Anyone who has been involved in a lawsuit as a dispute resolution mechanism knows what a laborious and often mysterious process it can be. But the process is changing. The public is demanding a user-friendly system that encourages litigants to enter into early discussions about resolution of their dispute and avoid the time, expense and emotional drain of protracted litigation.
It is incumbent upon us as client representatives to promote mediation as a desired alternative to trial, i.e. mediation instead of trial. We need to educate our clients about how this process works and show that there are advantages in this approach to dispute resolution.
The approach to handling a client’s cause and managing litigation has changed. Efforts are in process to develop a more cooperative approach to litigation, particularly during discovery. The Sedona Conference Cooperation Proclamation represents “a coordinated effort to promote cooperation by all parties to the discovery process to achieve the goal of a ‘just, speedy, and inexpensive determination of every action.”
The public has become intolerant of the notion of the trial lawyer as a “warrior” or “combatant.” Lawyers who work in litigation as problem solvers who can penetrate the process and assist in resolving a dispute, not perpetuating it , are what the public wants.
A settlement is the best economic day for a client, considering the present value of money, and the cost of taking a case into the pre-trial and trial states (and possibly through appeal). From the plaintiff’s perspective, the client has the use of funds now rather than the hope of some recovery later. On the plaintiff and defense sides, the costs of litigation often surprise clients, particularly if expert testimony from physicians or technical experts is needed. The fees for these experts are quite high, usually involving several hundred dollars per hour. Considering the amount of time that experts need to prepare, testify at deposition and then appear in court, several thousands of dollars can be incurred quickly by just this aspect of the case.
In my view, settlement is the ultimate victory. It takes the decision making away from a third-party – a judge or jury – and puts it in the hands of the parties. Settlement results only from consent, so a case is settled when the parties have retained control over the outcome and have carved out a result for themselves. It does not happen unless there is agreement.
Studies have shown that the parties to a dispute risk more by going to trial if they walk away from a reasonable opportunity to settle. In of hundreds of cases in which negotiations have been conducted but the parties have not settled the results reveal a party who rejected settlement often does worse at trial.
Mediation has resolution of a dispute as its objective. The parties in a mediation know they have come to resolve their differences. The intermediary or neutral – the mediator – has the sole job of accomplishing that goal. It is a dedicated forum for closure.
Over the last several years, mediation has become the more popular means of resolving disputes. Mediation is available to litigants to achieve settlement. It is often overlooked by lawyers in the beginning stages of litigation, when mediation can lead to an early— and appropriate— settlement. This is a big mistake, as it is at this early stage of litigation that the best deal can be achieved before the expense of protracted litigation.
There is a great deal of confusion among lay persons as to the difference between arbitration and mediation. These are forms of alternative dispute resolution—that is, alternatives to a trial in the courthouse. Court systems are now designed to make sure that parties are advised about these alternatives early and how they can expedite the resolution of a dispute and avoid the risks and expense (not to mention the emotional drain) of full-blown litigation. Many court systems have programs for early resolution, including the federal court in San Francisco, which has been a pioneer in these alternatives for resolving disputes without a trial.
Private mediation is a “supervised negotiation” away from the courthouse, with a trained and experienced mediator who has the skills of getting parties to talk and exchange views in an attempt to resolve their differences. This is in contrast to an arbitration in which the arbitrator actually decides the case. Our clients often do not understand the difference and it is our job to educate them on the mediation alternative to trial.
For example, the client must understand that:
• In mediation, the mediator guides the parties through the negotiation process so that any resolution comes because the parties agree.
• The mediator is not a decision maker, but a facilitator.
• The mediator is chosen by agreement only; a party cannot be forced to accept a mediator of a dispute.
• Mediators work in all aspects of litigation: complex civil cases, personal injury, professional negligence, complex insurance disputes and family law matters, particularly divorces and custody matters.
• A mediation is voluntary and is not binding. A settlement is reached only if the parties agree.
• A mediation can last from a few hours to several days (not necessarily in succession). Often the parties exchange “briefs” on their position before the mediation.
• Most important to note is that a mediation is confidential. By law, what takes place during a mediation cannot be used in the lawsuit as evidence. A trial court or jury does not hear about anything that was discussed during the mediation, nor is the subject of the parties’ respective positions at a mediation a proper subject of testimony at trial.
My experience is that the mediation process works well if certain conditions are met. First, the parties must be prepared to mediate. They must know their case well and have discussed their position with their lawyer and set some realistic goals for settlement discussions. Second, the parties must go to the mediation with a good faith desire to resolve the case. Third, a mediator must be chosen who is the right person for the case – someone whose approach to mediation fits the type of case and the parties involved. For example, if the case is volatile, then someone with a low-key style, using diplomacy more than persuasion, may be the right choice. On the other hand, if the parties are at odds, it may take someone with stature (such as a retired judge of some preeminence) to bring the parties together. And fourth, the mediator must be willing to work, to roll up the sleeves and stay the course until all settlement alternatives are explored. The basic rule is to keep the parties talking. So long as the parties are willing to communicate, there is a chance for a negotiated resolution.
As time goes by, our judicial system will rely more and more on courts and counsel directing litigants to a mediation alternative to litigation. The earlier the better.
Wednesday, May 26, 2010
SOME BASICS OF NEGOTIATING AT A MEDIATION
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.
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.
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.
Tuesday, April 6, 2010
How does the subject matter of a mediation affect the process? Does it make a difference in how you approach the mediation, select the mediator, and conduct the mediation? I think it does in a number of ways. Here are my thoughts:
Selection of the Mediator
This may be the most important factor relating to subject matter. Mediators with subject matter experience likely have an edge over those who do not. I am not saying that someone who is unfamiliar with the subject matter or law that governs the case cannot be effective; however, in some cases it really helps to have a mediator who knows how an industry works (e.g., insurance) or the law (e.g., intellectual property or employment disputes). I have been involved in many mediations (sometimes I represent the client in insurance issues but there is an underlying case that is the subject matter of the mediation) and it is really helpful to have a mediator who has already developed a body of knowledge and insight into the area of law which is at issue. It can give the parties – all sides – an edge towards resolution to have a mediator with that special knowledge.
Economic v. Emotional Claims
Cases with simply economic damages – a business dispute for example – require a different approach from those which involve emotional claims. Some mediators are very good at evaluating business losses, but lack the ability to connect with wrongful death or serious injury cases or other cases in which there is a high emotional component. I have found that some mediators just do not have sensitivity to emotional claims, while others seem to sense those that have real value and are able to accept monetary evaluations that reflect how a jury might respond to these claims.
Of course, the type of emotional claim is a consideration. For example, a wrongful death claim involving a young widow with three children or the loss of a long-standing spouse; both require serious thought on how to value those claims. And in my insurance bad faith cases there are often serious emotional claims based on an insurer’s refusal to pay, delay in paying, or attempting to “low ball” a claim involving serious injury or the loss of a home in a personal property damage claim. A mediator in these cases must be able to relate to these claims and deal with their compensation as an element of the damages component of the case being mediated.
Business Claims
Business cases require a mediator who has a business sense. Judges and lawyers who have been involved in business litigation while practicing or who have been heavily involved in the business side of the practice normally have a better insight into the these cases. I am not saying that those who do not cannot mediate business disputes, but it makes sense in complex business cases to select a mediator who has a head start on getting educated about the case.
Partnership and Closely Held Corporations and Family Business Matters
I do some mediating from time to time. It is not my regular diet as I still enjoy the advocacy of litigation and the challenge of representing clients. One of my most difficult assignments as a mediator, however, was a family business matter involving a closely held corporation. The sister had founded the company and the brother had come in after some time to run it. The sister was the marketing and sales force, while the brother controlled the financing and administration. The father was also a numbers person and worked with the brother. As time went on, the brother and sister did not see eye to eye about much; they could hardly be in the same room. The dispute threatened to sink the company, and outside investors were involved. I was asked to mediate. What a difficult case. Despite my efforts, I could not bring the brother and sister to a center point. The father refused to help. After premediation exchanges and a full day of mediation, I had to declare an impasse.
My sense is that I would have done better and had a greater chance of success if I had involved another mediator who had experience in family disputes, and perhaps even a non-lawyer. There are professionals out there who specialize in working with families who are wealthy and have ongoing business relationships or who are involved in ongoing businesses in which there are intrapersonal issues that impact the family business.
I tried to get these folks to entertain the idea of involving someone like I have described, but they were so far into the personal issues that it was too late. Had I recognized the severe schism between the brother and sister before the mediation, I may have been able to involve another professional who could help in getting the parties to see the issues and coming to grips with a solution that would save the business.
Next time!
Class Actions
Here, experience counts. There are special issues which arise in these cases, including damages assessments and evaluation of the class claims, administrative issues pertaining to the evaluation of the individual claims of class members and means of distribution, apportioning the payments among various defendants, and attorneys’ fees, just to name a few. While I have not been involved in the mediation of a large class claim, I do know from my colleagues that there are some excellent mediators who have had considerable experience with mediating these disputes. So it seems appropriate to search these mediators out and consider them for class actions.
Injury Cases with Multiple Defendants
I find that injury cases with multiple defendants need a special kind of mediator – one who is skilled in dealing with typical plaintiff/defendant conflicts, as well as disputes between defendants and their carriers. Often there will be coverage issues with some of the insurers for the defendants, so those may be involved as well. Thus, you may have at least three layers of disputes: a) issues pertaining to the value of the plaintiff’s claim, b) issues pertaining to the apportionment of the loss among the defendants based on tort or contract concepts (tort as it pertains to the apportionment of the loss and contract based on contractual obligations among the defendants and indemnity provisions), and c) disputes between a defendant and its insurer.
Mediators in these cases must be able to stay organized, keep dialogue going at all levels, and create a plan for bringing all the disputes to a head and resolving them at all levels. These are very challenging cases, and you need a mediator who is willing to roll of up his or her sleeves and stay with the process. Sometimes, the ultimate resolution may not happen all at once. For example, there can be an agreement to resolve the main case, but disputes remain among the defendants and their carriers. A creative mediator will know how to manage this type of mediation even if the complete resolution is done piecemeal.
Injury Claims with Complex Liens
Lien claims can provide big hurdles to the resolution of an injury case. Workers’ compensation insurers, health insurers, and the government all can stick their noses into a case and stymie the resolution process. I have found that it helps if before the mediation, as plaintiff’s counsel, to have contacted any lien claimants, advised them of the mediation, invited them to attend, and discussed numbers for resolving those lien claims as soon as it is apparent that the parties are headed for a mediation. Once that is done, you should have a discussion with the mediator before the first mediation session about your progress in trying to resolve these claims, and alert the mediator as to the status of your negotiations. If there are anticipated hurdles then the mediator may want to contact that lien claimant or its counsel before the mediation to identify the issues and prepare him or herself for dealing with them at the mediation session.
Selection of the Mediator
This may be the most important factor relating to subject matter. Mediators with subject matter experience likely have an edge over those who do not. I am not saying that someone who is unfamiliar with the subject matter or law that governs the case cannot be effective; however, in some cases it really helps to have a mediator who knows how an industry works (e.g., insurance) or the law (e.g., intellectual property or employment disputes). I have been involved in many mediations (sometimes I represent the client in insurance issues but there is an underlying case that is the subject matter of the mediation) and it is really helpful to have a mediator who has already developed a body of knowledge and insight into the area of law which is at issue. It can give the parties – all sides – an edge towards resolution to have a mediator with that special knowledge.
Economic v. Emotional Claims
Cases with simply economic damages – a business dispute for example – require a different approach from those which involve emotional claims. Some mediators are very good at evaluating business losses, but lack the ability to connect with wrongful death or serious injury cases or other cases in which there is a high emotional component. I have found that some mediators just do not have sensitivity to emotional claims, while others seem to sense those that have real value and are able to accept monetary evaluations that reflect how a jury might respond to these claims.
Of course, the type of emotional claim is a consideration. For example, a wrongful death claim involving a young widow with three children or the loss of a long-standing spouse; both require serious thought on how to value those claims. And in my insurance bad faith cases there are often serious emotional claims based on an insurer’s refusal to pay, delay in paying, or attempting to “low ball” a claim involving serious injury or the loss of a home in a personal property damage claim. A mediator in these cases must be able to relate to these claims and deal with their compensation as an element of the damages component of the case being mediated.
Business Claims
Business cases require a mediator who has a business sense. Judges and lawyers who have been involved in business litigation while practicing or who have been heavily involved in the business side of the practice normally have a better insight into the these cases. I am not saying that those who do not cannot mediate business disputes, but it makes sense in complex business cases to select a mediator who has a head start on getting educated about the case.
Partnership and Closely Held Corporations and Family Business Matters
I do some mediating from time to time. It is not my regular diet as I still enjoy the advocacy of litigation and the challenge of representing clients. One of my most difficult assignments as a mediator, however, was a family business matter involving a closely held corporation. The sister had founded the company and the brother had come in after some time to run it. The sister was the marketing and sales force, while the brother controlled the financing and administration. The father was also a numbers person and worked with the brother. As time went on, the brother and sister did not see eye to eye about much; they could hardly be in the same room. The dispute threatened to sink the company, and outside investors were involved. I was asked to mediate. What a difficult case. Despite my efforts, I could not bring the brother and sister to a center point. The father refused to help. After premediation exchanges and a full day of mediation, I had to declare an impasse.
My sense is that I would have done better and had a greater chance of success if I had involved another mediator who had experience in family disputes, and perhaps even a non-lawyer. There are professionals out there who specialize in working with families who are wealthy and have ongoing business relationships or who are involved in ongoing businesses in which there are intrapersonal issues that impact the family business.
I tried to get these folks to entertain the idea of involving someone like I have described, but they were so far into the personal issues that it was too late. Had I recognized the severe schism between the brother and sister before the mediation, I may have been able to involve another professional who could help in getting the parties to see the issues and coming to grips with a solution that would save the business.
Next time!
Class Actions
Here, experience counts. There are special issues which arise in these cases, including damages assessments and evaluation of the class claims, administrative issues pertaining to the evaluation of the individual claims of class members and means of distribution, apportioning the payments among various defendants, and attorneys’ fees, just to name a few. While I have not been involved in the mediation of a large class claim, I do know from my colleagues that there are some excellent mediators who have had considerable experience with mediating these disputes. So it seems appropriate to search these mediators out and consider them for class actions.
Injury Cases with Multiple Defendants
I find that injury cases with multiple defendants need a special kind of mediator – one who is skilled in dealing with typical plaintiff/defendant conflicts, as well as disputes between defendants and their carriers. Often there will be coverage issues with some of the insurers for the defendants, so those may be involved as well. Thus, you may have at least three layers of disputes: a) issues pertaining to the value of the plaintiff’s claim, b) issues pertaining to the apportionment of the loss among the defendants based on tort or contract concepts (tort as it pertains to the apportionment of the loss and contract based on contractual obligations among the defendants and indemnity provisions), and c) disputes between a defendant and its insurer.
Mediators in these cases must be able to stay organized, keep dialogue going at all levels, and create a plan for bringing all the disputes to a head and resolving them at all levels. These are very challenging cases, and you need a mediator who is willing to roll of up his or her sleeves and stay with the process. Sometimes, the ultimate resolution may not happen all at once. For example, there can be an agreement to resolve the main case, but disputes remain among the defendants and their carriers. A creative mediator will know how to manage this type of mediation even if the complete resolution is done piecemeal.
Injury Claims with Complex Liens
Lien claims can provide big hurdles to the resolution of an injury case. Workers’ compensation insurers, health insurers, and the government all can stick their noses into a case and stymie the resolution process. I have found that it helps if before the mediation, as plaintiff’s counsel, to have contacted any lien claimants, advised them of the mediation, invited them to attend, and discussed numbers for resolving those lien claims as soon as it is apparent that the parties are headed for a mediation. Once that is done, you should have a discussion with the mediator before the first mediation session about your progress in trying to resolve these claims, and alert the mediator as to the status of your negotiations. If there are anticipated hurdles then the mediator may want to contact that lien claimant or its counsel before the mediation to identify the issues and prepare him or herself for dealing with them at the mediation session.
Friday, March 12, 2010
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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