Monthly Archives: May 2012

Seven Keys to Succeed with your Client in Mediation

Posted on by John Bates, Esq.

John Bates, Esq.

John Bates has been mediating full-time since 1991 and has conducted more than a hundred lectures and trainings on mediation and has mediated several thousand matters in 30 states.

Most legal professionals think of mediation merely as a process to settle cases, but it also allows you to work collaboratively with your client and to showcase your skills for preparation, advocacy and negotiation. Managed properly, mediation can solidify your relationship with your client and help you to develop future business.

1.    Negotiation is all about communication

The mediator should create an environment conducive to effective communication and work to convey the respective parties’ points of view in a way that will ensure they are received and sincerely considered. Let the mediator lead the discussion and try to communicate as clearly and patiently as possible.

2.    Involve the Client from the Outset

Proposing mediation to your client shows you are looking for cost effective ways to manage litigation; timing is critical.  In the early stages of litigation, your client is upset and may not be thinking about compromise.

3.    Managing the Mediation Process

Once your client is open to exploring the mediation option, explain the process, reminding them it is voluntary, nonbinding and confidential. Be sure your client understands that they retain control over the outcome.

4.    Involve Your Client

By seeking your client’s collaboration, you will gain their appreciation and gain invaluable insight. Solicit ideas from your client and get their reaction to your plan to manage the process. This will unify you as a team and give your client comfort. Establish mediation strategy and tactics with your client.

5.    Prepare a Mediation Brief

Solicit your client’s input. You may obtain useful information.  Many clients are skilled negotiators and knowledgeable about realities of litigation. Soliciting their input conveys your respect and appreciation of them, which assures that you can be effective collaborators.

6.    Plan for Mediation, Plan for Litigation

Remind your client that what you need to do to maximize your leverage at the negotiating table is far less than what you would have to do to win at trial. You and your client must decide what you will need for the mediation as well as what you might need to do to prepare for trial. Equipped with a budget, you can demonstrate to your client how you are using mediation as a cost-effective way to manage litigation.

7.    Stay Connected with Your Client

During the mediation session, look for ways to engage your client and foster your relationship. There can be a lot of “downtime” when the mediator is meeting with the other side. Use this time productively to learn about your client’s interests and things you have in common. Spending time with your client is a bonding experience. Always be aware of your client’s needs and make sure they are met, whether they are process-driven or personal. In essence, make sure your client is comfortable. This will foster communication, enhancing the chances for settlement, and will strengthen your professional and personal relationship.

Mediation is a fluid and flexible experience. By focusing on your client as part of the process, your prospects for success in mediation and for future business are likely to be enhanced.

Settling Multidistrict Litigation

Posted on by Chris Poole

Kim Taylor, Esq.

Kimberly Taylor is the JAMS COO and oversees JAMS operations in the United States. Working directly with the President and CEO, and leading a team that spans 25 resolution centers across North America, Taylor is responsible for the company’s day-to-day operating activities.

Cathy Yanni joined JAMS in 1998 and her practice includes mediation, Special Master/Discovery Referee, arbitration, and class action and multi-district litigation (MDL) settlement administration.

Cathy Yanni, Esq.

As cases become more complex and wider-reaching, creating a resolution strategy at the beginning of a dispute can save time and money before litigation costs mount. Though 95 percent of cases settle before trial, the eventual settlement typically takes place following numerous hours and dollars spent preparing for litigation.

Take for example when a corporation has been sued in a variety of jurisdictions. The cases are consolidated into a multidistrict litigation (MDL), which is a federal procedure designed to consolidate and process complex cases. Typically one federal judge is assigned by the U.S. Judicial Panel on Multidistrict Litigation (MDL Panel) to coordinate cases spread out across the country. The purpose of this centralization process is to avoid duplication of discovery, to prevent inconsistent pretrial rulings and to promote efficiency for counsel and judges.

Transferred actions not terminated in the transferee district are remanded to their originating transferor districts by the Panel at or before the conclusion of centralized pretrial proceedings.  Generally, the appointed MDL judge oversees the settlement process, creating it in conjunction with the plaintiff steering committee, the defendants’ settlement counsel, and a settlement special master or mediator.

A key part of settlement strategy for the defense is to create a national settlement team whose sole job it is to resolve the litigation. The settlement team needs a lead counsel whose only focus is settling the case. They should be a respected trial attorney with knowledge of the mediation process, the ability to work effectively with plaintiffs’ counsel, and great perseverance. Settlement counsel will work together with both trial and in-house counsel to learn the case and strategize for settlement. With an overall settlement strategy in place, discovery (often the most expensive aspect of litigation) can be focused on key issues.

Many courts will appoint a mediator or mediation panel to help the parties resolve the cases in coordination with national settlement counsel and a plaintiffs’ steering committee.

The mediator who is assigned to the litigation develops a deep understanding of the issues and knowledge of settlement values for the individual claims. Some judges take a very active role in resolving their assigned MDL matters, holding mediations at the courthouse with the assistance of the mediator. There are many paths to coordinating mediation. The mediator can work with individual firms to settle cases individually or in a pool, and can also work with the plaintiffs’ steering committee to resolve cases on a global basis.

Having a well coordinated litigation and settlement team with a succinct strategy for settlement is a cost effective and efficient process for resolving MDLs.

Information Friday: Some News to End Your Week

Posted on by Chris Poole

Here’s a round-up of ADR news happening around the world. So, take a break, grab a cup of coffee and get informed!

Arbitration benefits Nevada county by $30 million

Italian Minister of Justice promises to speed up justice system

Mediation and arbitration center hopes to cut commercial conflict time in Lebanon

NBA union seeks arbitration over “Early Bird” Exception to salary cap

Professor Susskind: 15 Things We Know about Environmental Dispute Resolution

How ADR Can Help Keep Confidential Agreements Confidential

Posted on by Richard Posell, Esq.

Richard Posell, Esq.

Richard Posell, Esq., is a JAMS panelist in Santa Monica, Calif. He resolves high-profile, complex commercial disputes and has experience in entertainment, trade secrets, trademarks, trade dress, class actions, executive employment disputes and general business disputes.

The problem of access to and maintenance of the secrecy of contracts or contract terms that are “confidential” by agreement is a common one in litigation.

The recent pronouncements of the California Supreme Court in NBC Subsidiary v Superior Court and Universal Studios v Superior Court manifest a hostile public policy against such secrecy in public trials. An agreement to keep a document secret or confidential is insufficient to seal it; there must be an “overriding interest” supporting sealing or court closure, which has been interpreted to mean “a specific showing of serious injury.” Whether purely commercial interests (other than trade secrets) are sufficient is unclear. Given a choice, the party wishing to keep the document secret may decide that the risk of an unsealed filing may not justify public litigation.

While arbitration is often a better solution, it isn’t fool-proof because judicial supervision and enforcement of arbitration is common and would be subject to the NBC-Universal requirements of overriding interest and serious injury.

To avoid these pitfalls, the parties wanting to protect a document may want to steer the proceedings into mediation. California Evidence Code Section 1119 protects from admissibility in any later proceeding “anything said” in the course of mediation and any “writing” that is prepared for or in the course of mediation. The California Supreme Court has stated on several occasions that there is no “good cause” exception to this rule, even where a hardship results. Mediation is an environment where everything prepared to further it is automatically protected by law – but to a point: the mediation privilege does not protect a document that predates the mediation. The problem is to protect the confidential document even though it is otherwise discoverable.

Here are some ideas about how to accomplish this:

  • The protecting party should create a summary of confidential contract provisions for the mediation, which do not simply recite the terms verbatim. For example, charts or graphs that track payments with contract provisions are clearly “materials prepared for or in the course of” mediation. Once the accuracy of this summary is confirmed, it, and not the contract itself, can become the critical (and privileged) document.
  • To confirm the accuracy of the summary, a copy of the confidential agreement can be provided under the supervision of the mediator with the understanding (in writing if necessary) that it will not be copied and will be returned as soon as the terms of the summary are confirmed.
  • Including any third party who has an interest in the confidentiality issue (if not the outcome of the dispute) in the mediation to confirm the protection of the contract and the information contained in it will save problems from arising later and hopefully establish a precedent for resolving other similar disputes.

Of course, it is the parties who are the best source of ideas to resolve the tension between disclosure and secrecy where confidential documents are involved in a claim.