The Key “Moral” from Stories Mediators Tell

Wayne Brazil

Hon. Wayne D. Brazil (Ret.)

by Hon. Wayne D. Brazil (Ret.)

The theme of the 2014 Mediation Week was inspired by Stories Mediators Tell, a moving and illuminating collection of stories about the often dramatic facts of mediation life that Editors Eric R. Galton and Leila P. Love coaxed from a diverse group of experienced mediators to share with the rest of us (ABA Section of Dispute Resolution, 2012).

The ABA Mediation Week initiative is a celebration of the strides made in institutionalizing mediation as one of several appropriate dispute resolution processes. The 2014 ABA Mediation Week was held October 12-18.

Risk is one of the pivots on which many of these stories turn.  But it is not the kind of risk on which we (as mediators in litigated cases) are accustomed to focusing: risk of loss. Stories doesn’t hammer on risk aversion, and doesn’t teach techniques for capitalizing on it in order to generate ‘movement’ toward a deal.

Instead, the risk that imperils success in these stories is the risk that we will take ourselves too seriously, exaggerate our role and responsibility, and thereby disable ourselves from capitalizing on the skills, understandings and other “resources of person” that reside in all the other players in a mediation drama.

Stories reminds us, graphically, that it is the parties who are supposed to be at the center of the process. It also demonstrates that it is the parties who often can be the sources of the most valuable and, sometimes, crucial contributions to the viability of the process. It is the parties, after all, who best understand themselves. They know what they think, feel and need. And sometimes it is the parties who best understand one another – who most accurately identify the agendas, needs, and goals that the other side has set for itself.

How can we help the parties or earn and deserve their confidence if we do not ‘pause in their places’ long enough to learn these things — if we are so obsessed with our own ‘orchestration of process’ that we hustle right past these significances?

These are not just philosophic issues. They implicate our ability to do our job.  We cannot ‘speak to’ a party without first learning his language, the language that will open him to hearing us.  And we cannot help a party ‘come to terms’ unless she understands that we understand her circumstances and needs – and have given them full play in our efforts to secure the most attractive proposals possible from the other side.

In several mediations in my recent past, it has been parties or their counsel who have suggested the kind of terms that would be most attractive to their opponent.  Or who have given me the best advice about sensitivities to acknowledge or to avoid when working with others.  Among many other lessons, Stories teaches us how much insight, intelligence and wisdom often resides in the other minds in our mediations – and how it is only by actively encouraging contributions from all of those minds that we can feel we are doing the best possible job.

The Duty to Preserve Electronically Stored Information

Viggo Boserup, Esq.

Viggo Boserup, Esq.

by Viggo Boserup, Esq.

As soon as a party is served with a summons and complaint and sometimes sooner, there arises a duty to preserve evidence, including electronically stored information (ESI). This duty requires both counsel and clients to comply with any litigation hold and monitor ongoing compliance efforts.

Because spoliation – withholding or hiding evidence – goes to the heart of the litigation process and is not unlike perjury, failing to comply with the duty to preserve has serious consequences. Judges have wide discretion in assessing penalties and may impose fines or attorneys’ fees. They may also give a spoliation inference instruction to a jury, as Judge Scheindlin did in Zubulake v. UBS Warburg: “[i]f you find that [defendant] could have produced this evidence, and that the evidence was within its control, and that the evidence would have been material in deciding facts in dispute in this case, you are permitted, but not required, to infer that the evidence would have been unfavorable to [defendant].” Many of Judge Scheindlin’s holdings in Zubulakehave been cited in dozens of other cases and form the foundation for much of the Federal Rules of Civil Procedure adopted in 2006.

Due to the serious consequences of spoliation, counsel and their clients must ensure every effort is made to comply with the duty to preserve.

When Does The Preservation Obligation Arise?

The duty to preserve arises when there is a reasonable anticipation of litigation, such as upon service of a summons, complaint, or preservation demand letter. In Zubulake, supra, the obligation actually arose much earlier. There the court held that the obligation arose when the plaintiff filed her EEOC complaint 2 months prior to even being terminated. The court noted further that the obligation was probably triggered even four months earlier because “almost everyone associated with Zubulake recognized the possibility that she might sue.” Zubulake v. UBS Warburg LLC. Given the wide discretion demonstrated in Zubulake and other cases citing it, counsel are advised to note the trend in the applicable jurisdiction.

To learn more about preserving electronically stored information, please read the full article from by clicking here.

Make the Most of Your Mediation: Effective Negotiations

Hon. Lynn Duryee (Ret.)

Hon. Lynn Duryee (Ret.)

By Hon. Lynn Duryee (Ret.)

Wouldn’t it be great if at your next mediation your client left satisfied, you felt valued and the case settled at its best number?  Here are five tools lawyers can use to set up such an outcome: 

1.  Bring everything you need to settle completely.  Before the mediation, think about what you will need to settle the case in its entirety.  Perhaps it is a document, such as a settlement agreement, release of lien, escrow instructions, quitclaim deed or dismissal with prejudice.  Maybe it’s your client’s checkbook or certified funds.  Perhaps it is something intangible, such as tax advice or a reduction of a medical lien.  Whatever your case might need to settle it once and for all, have it with you at the mediation.  If closing documents require notarization, arrange to have a notary at the ready.  The best time to hammer down loose nails is when parties are face-to-face and focused on resolution.  Knowing in advance what you need to settle reduces the possibility of overlooking some detail and gives you a template for working with your opponent.  Plus, it really enhances the giddy factor when, for example, the contractor walks out with a check in his hand and the homeowner has a notarized release of mechanic’s lien in hers.

2.  Give the case your full attention.  Sure, you can spend the day playing on your cell phone and billing other files, but if you give your client your full attention, you will increase your client’s satisfaction as well as the likelihood of settlement.  Why?  Because engagement is magic.  If you think about the most exhilarating moments in your life—whether you were trying a case to a jury, delivering a baby or watching Game 7 the World Series—you were giving 100 percent of your effort to that important moment.  Do the same for your client during his mediation.  Attend to his needs.  Be patient in explaining the ups and downs of the day.  Let him grouse for the hundredth (and hopefully last) time.  You will learn more because you’re listening deeply, improve your thinking because of your single focus and enjoy yourself because you’re on fire.  Doesn’t sound better than another round of boring solitaire?

3.  Say it with pictures.  As lawyers, we believe in words.  We love them!  Can’t get enough of them!  So we often forget that seeing is believing.  How can you best illustrate your case?  Day-in-the-life videos are awesome, but not every case merits an outlay so time-consuming and expensive.  It could be something as simple as enlarged color photographs (not the usual black-and-white photocopies better suited to a Rorschach than a visual aid).  What about a brief PowerPoint with pictures of the defects?  Or a video showing the cows’ trespass on to your client’s property?  Or a mockup of the defective product?  Visual aids are a great tool for the joint session because they’re efficient, interesting and persuasive.  So save your breath and say it with pictures.

To read on to section 4. Create Ground Rules, please read the full article from by clicking here.

Allocation Methodology

Cathy Yanni

Cathy Yanni

by Cathy Yanni

This article will focus on the due process aspect of allocation methodologies in mass tort class actions and multidistrict litigations.  This typically involves the substantive right to allocation and procedurally how the process is structured.

Let’s assume you have settled a mass tort and it is now time to allocate the settlement proceeds among the claimants.  There is a variety of settlement models.  For example, the settlement can involve all or almost all of the claims, e.g., Vioxx, ASR Hips or individual inventory settlements involving particular counsel or groups of counsel.

In an inventory settlement, the defendant settles based on an evaluation of each case by a law firm or group of law firms.  The defendant may require that a certain percentage of the claimants accepts the allocation.  The defendants negotiate a settlement grid or matrix with an agreed-upon settlement value.  The values may be based on age or type of injury and may use a point or scoring system.  Each point can be worth an agreed-upon value.  The higher the points, the higher the allocated amount.  On occasion, the defendant may negotiate a lump-sum amount, leaving the allocation process to the plaintiffs.  Most settlements include a blow-out provision requiring an agreed-upon percentage of claimants to accept the settlement terms.

Whether you represent two or 2,000 plaintiffs in a class action or MDL, or you are one of two or 200 firms representing multiple claimants, allocation produces potential conflicts of interest among the competing claimants (ABA Model Rules of Professional Conduct, Rule 1.7).  Counsel must obtain informed consent from each claimant and has an affirmative duty to communicate the settlement to the claimants (ABA Model, Rules 1.0, 1.4 and 1.8(g)).

The designer of the applicable allocation model must keep in mind that pursuant to Fed. R. Civ. P. 23(e), the settlement and the resulting allocation must be fair, adequate and reasonable.

Allocation necessarily pits mass justice against individual justice.  When you are formulating the model, you need to determine how many injury categories are appropriate and what types of injuries will be compensated.  Common injury categories include heart attack, stroke and death.  Often, deductions for comorbidities are part of the allocation methodology, such as age, body mass index and smoking.

To continue reading Cathy Yanni’s discussion on Allocation Methodology, please read the full article from by clicking here.