Mediation Tips: Bidding against Yourself—For Fun and Profit

By Martin Quinn

Martin Quinn

Martin Quinn

Without a doubt, the words mediators most often hear from counsel are “I won’t bid against myself.”  This phrase is engraved as immutable law in the hearts and minds of virtually all counsel who come to mediation.  By this, they mean that they will not make another negotiating move unless their opponent responds to their last move.  As a general negotiating tactic, it usually makes sense.  Negotiation is a conversation, which should normally be reciprocal.  Neither side gives way without getting something in return from the other side.  But negotiating settlements in complex lawsuits is not the same as buying a rug in a Middle Eastern souq.  Counsel need to be more flexible, more creative and more willing to break “rules” to reach their client’s goal.  And yes, in a few instances, a creative negotiator should bid against herself.  Knowing when and why to do that gives counsel another tool to garner a win in mediation for the client.

The first instance is at the initial offer or demand.  Assume that plaintiff has made a pre-mediation demand of $1.5 million.  Defendant has refused to respond because the demand is so far “out of the ballpark.”  What to do?  By moving off the $1.5-million demand a bit—say to $1.425 million—plaintiff will get the negotiation conversation started, engender some good will in the defense room and demonstrate confidence in its initial number (because it moved only a little).  It will surprise the defense (who of course would never bid against itself) and put plaintiff in control of the early negotiation—all at no cost since the case obviously is never going to settle in the $1.4- to $1.5-million range.  In response, the defense is likely to make a more businesslike, higher offer than it would have made had the mediator insisted that it respond to the $1.5-million demand.

The second instance is when things are stuck after two or three rounds of minuscule, unconstructive tit-for-tat moves.  Plaintiff is telling the mediator it’s time to leave and expressing reluctance to lower its demand.  The defense should consider making another offer—that is, bidding against itself—but should shake things up by throwing in some non-monetary term.  For example, even without any response from plaintiff, the defense might increase its monetary offer by a small amount, but also offer to structure the settlement in a tax-advantageous way for plaintiff.  Or in an employment dispute, the defense might raise its back pay offer a bit but add an offer to pay for outplacement services.  This breaks the cycle of useless mini-moves, increases the “pie” of options available to frame a deal from money alone and again demonstrates confidence.

For more on Mr. Quinn’s Mediation Tips, please read the full article from Law.com by clicking here.

Think there’s fruit in your Froot Loops?

By Martin Quinn

Martin Quinn

Martin Quinn

Martin Quinn is a JAMS neutral, based in San Francisco.  He specializes in resolving business and complex tort disputes and frequently acts as special master in complex federal and state actions.  He can be reached at mquinn@jamsadr.com.

Do Fruit Roll-Ups and Fruit by the Foot have to contain real fruit?  Mediation is a perfect vehicle for resolving food labeling cases involving claims of false advertising and violation of state consumer and unfair competition laws.  These cases present a myriad of different claims and defenses that create significant risk for both sides.

Class plaintiffs typically allege that a food product’s ingredients do not square with its advertised contents, that it does not convey the advertised health benefits, that its benefits are not “clinically proven” as represented, or that its claimed qualities do not exist.  Defendants raise issues such as preemption by federal law, misrepresentation of a product’s advertising claims, and the obviously fanciful nature of foods such as “crunchberries” or “fruit loops.”

Certifying a class in these cases presents special challenges.  Ascertainment of the class members is difficult:  who bought which product, who saw which label or advertisement, who is unable to show damage since they benefited from the product?  Therefore, class members can usually be identified only by a post-judgment or settlement claim process.  Defendants will argue that individual issues of injury and damage predominate.

Mediation provides a confidential and flexible forum for plaintiffs (often public interest groups) to obtain the non-cash remedies they principally want:  prompt enforceable changes to misleading labels, and possibly corrective advertising.  Defendants obtain quick resolution out of the public eye before damaging publicity emerges.  They may also obtain the benefit of a class settlement that provides statewide or nationwide protection against future attacks.  Damages are usually a secondary objective, but they too can be effectively negotiated in a mediation setting.

During negotiations over attorneys’ fees the mediator needs to tread delicately, since defendants want to know their total settlement cost including fees, while plaintiffs’ counsel will resist discussing fees until compensation to the class has been tentatively agreed.  A mediator can usually subtly give the defendant hints of the likely range of attorneys fees, to give defendant enough comfort to reach preliminary agreement on class remedies.

Since negotiations often hang-up over all parts of the discussions:  labeling changes, corrective advertising, reimbursement to the class, attorneys’ fees.  So the mediator must be ready at the right moment to offer a mediator’s proposal — often a complicated multi-part proposal that the mediator will type and present to both sides.

Mr. Quinn’s original article was published in the Daily Journal in October.  For the full article, click here.

Recent E-Discovery Case Law Endorses Familiar Principles

Martin Quinn

Today’s post comes from JAMS panelist, Martin Quinn, Esq., who specializes in resolving business and complex tort disputes and frequently acts as special master  in complex federal and state actions. This is the first in a series of posts on e-discovery.

A special master was asked the other day to sign an e-discovery order that contained the following language, “Concordance Delimited Text File.  At a minimum, this file must contain BEGDOC field. The delimiters for the file must be standard Concordance delimiters … ƥBegDocƥƥEndDocƥƥBegAttach…Etc.”  I think you get the point….

Even judges and special masters with a considerable mastery of e-discovery legal and technical issues must grapple with computer search technology that is beyond any expertise they can reasonably acquire.  In a world that has moved definitively to computer-assisted search and review of ESI (Electronically Stored Information), courts will increasingly need to determine whether a party has satisfied its discovery obligations by using machines and software to locate, preserve, analyze and review electronic material.  Recent case law suggests that courts are answering these complex questions with a few fundamental, familiar rules grounded in common sense.

  1. Meet-and-confer early and often.  Counsel should meet early and often throughout the case, with the involvement of technical consultants and the client’s IT personnel.  Such meetings are required by Fed. R. Civ. P. 26(f)(3)(C), as a ruling in In re Facebook PPC Advertising Litigation, 2011 WL 1324516 (N.D. Cal., April 6, 2011) affirmed.  Plaintiffs complained that Facebook refused to meet-and-confer on the terms of an ESI Protocol.  Rejecting Facebook’s protests that a protocol was unnecessary and would impose “rigid upfront requirements” that would complicate and slow discovery, the court ordered the parties to meet-and-confer to agree on an ESI Protocol.
  1. Use a tiered approach to limit the scope of production.  Courts and special masters should insist that the parties used tiered techniques, such as sampling and early case assessment, to test and refine search protocols, whether with key words or more sophisticated analytic tools.  Only when those limited test runs have proved the validity of the preservation or search protocol should it be rolled out to a wider scope of documents.  In short, baby steps work best.  In Abu-Dhabi Coml. Bank v. Morgan Stanley, 2011 WL 3738979 (S.D.N.Y August 18, 2011) a special master ordered production of attachments to only 126 e-mails, reserving judgment on production of further attachments until the relevance of attachments had been confirmed.
  1. Insist on use of the most efficient search technology.  Disputes about what technology to employ should be resolved by the parties.  When courts must make such decisions, they routinely favor technology that will get the job done fastest, cheapest and with the least intrusiveness – even if the final result is not perfection.  In Adams v. Allianceone, Inc., 2011 WL 2066617 (S.D. Cal., May 25, 2011), a magistrate judge declined to impose sanctions on a party for producing ESI in non-searchable PDF format rather than a searchable CSV (comma-separated value) format, because the receiving party could use commercially available software to extract the data from PDF into searchable form.  In Seven Seas Cruises, etc. v. V. Ships Leisure SAM, 2011 WL 772855 (S.D. Fla., February 19, 2011), the court ordered an unsophisticated defendant to retain an e-discovery consultant, to use Boolean search terms and to produce ESI in native format with load files.

In each of these cases, the court reluctantly dove into technical issues, but resolved them efficiently.  While the exact mechanisms for storing, accessing and searching data are always changing, the basic protocols for e-discovery are a constant that practitioners can count on.