The Benefits of Neutral Evaluation

Hon. Anne Ellington (Ret.), JAMS mediator and arbitrator

Hon. Anne Ellington (Ret.), JAMS mediator and arbitrator

When we are immersed in a case, we all tend to get blinders on. Client hopes and expectations, and our commitment to them and to their cause, can lead us to underestimate the other side and be overconfident about our case. Good lawyers routinely seek consultation in the drafting of important documents. Why not in the preparation for trial or arbitration? A second and neutral pair of eyes can save your case and your sanity.

What is it?
An experienced, objective and disinterested former judge or attorney works directly with counsel to provide a candid, confidential and objective assessment of a case or any part of the case, at any stage —before filing, summary judgment, trial or arbitration, before and upon appeal—whenever an outside view can be useful. A neutral evaluation may consider such factors as process, law, decision-makers, substance or evidence issues and potential outcomes.

At almost any stage, an evaluator can be useful: an objective view of facts and arguments, the value of your case, feedback/suggestions toward effective presentations, settlement posture. In some cases evaluators even interview key witnesses, or make presentations to Boards of Directors, or otherwise engage with clients. Indeed, one of the great values of neutral analysis is help in managing client expectations.

A neutral evaluation can be short and sweet, or extend sporadically through the life of the case. The evaluator works directly for you, to provide a candid and confidential assessment for your consideration.

When to do it?
At any point in a case, depending on your purpose. Each stage offers a possibility for a neutral evaluation to be useful:

Used early a neutral evaluation can help you and your client decide whether to proceed at all, balancing the expense of litigation and the likelihood of success. The neutral evaluator can help with identifying the unknowns and their importance, identifying the potential legal theories and the necessary elements of each, assessing the risks, prioritizing discovery, and so on. Or the neutral can offer a private assessment of claims brought against your client and how to respond to them.

Once the game is on, a neutral evaluator can help analyze a single issue, or all the issues, or frame a summary judgment argument. Are there any holes in your case that you need to close before discovery closes? What are your strongest arguments and how do you make them? Your opponents’ strongest arguments? Which arguments are just distractions? Do you move for summary judgment? For discovery or for real? What are the likely settlement options? What are the key jury instructions? Where do you need to be careful about preservation of error?

What about after trial or arbitration? Experienced appellate counsel often seek a neutral evaluation of the briefs (any appellate judge will encourage all attorneys, no matter how experienced, to have a nonparticipant who is literate in appellate advocacy review your briefs closely before you file them). Very often, appellate advocates conduct moot arguments to a panel that includes former appellate judges.

What about the expense?
Clearly there must be enough at stake to justify the expense. The cost depends upon the assignment: two or three hours to evaluate specific issues and discuss strategies with counsel will cost relatively little. Consultation at several stages may come to much more.

The point is that you have complete control: first, because the letter of agreement will specify the time allotted, and second, because you determine what tasks and materials are included in the evaluation. The process can take whatever form is useful to you, including written evaluation, informal conversation, meetings with clients and boards of directors – whenever you and your case can benefit from a second set of (experienced) eyes.

In short, an evaluator provides experience, confidentiality, candor and neutrality.

Diversity and Mediation

Hon. Ariel E. Belen (Ret.)

Hon. Ariel E. Belen (Ret.)

Imagine two parties locked in a bitter and acrimonious dispute that has gone through six years of hotly contested litigation. At issue are the ownership and control of at least a dozen commercial and residential properties valued in the tens of millions of dollars.

The litigants in this case were associated for nearly 40 years and had built up this large real estate enterprise from scratch. Unfortunately, they had a major and seemingly irreparable falling out and were no closer to resolving this case than they had been at its commencement. One of the litigants was a Latino immigrant, who felt deeply wronged by his former partner.

It is an axiom of mediation that emotional forces can disrupt communication and produce non-productive, if not outright irrational, decision-making. Although the broad outlines of the settlement should have been apparent to both sides for a long time, what was missing was the ability of a mediator to get beyond the parties’ huge emotional investment. What altered the negotiations was that the mediator almost always spoke in Spanish with this litigant and always listened very carefully to what he said and to what he did not say. This settlement, however, would be a rarity in today’s world of ADR because of the scarcity of Latino ADR practitioners in the United States. Continue reading

Selecting a Neutral at Case Inception

Louis Marlin, JAMS mediator and arbitrator

Louis Marlin, JAMS mediator and arbitrator

Every attorney who works as a litigator knows that litigation is a stressful and often frustrating exercise. Experienced litigators strive to provide the best representation for their clients while attempting to find ways to work cooperatively and cordially with opposing counsel. However, despite the efforts of well-meaning attorneys, it is the rare case where time-consuming disagreements do not interfere with the process.

Simply stated, I suggest that the parties select a professional “neutral” at the case inception to be available to resolve issues that present roadblocks to the cooperative and efficient progression of litigation. This approach addresses what I would call low-grade to moderate litigation-related disagreements, which I believe would save time and money—and lower litigation stress—for attorneys and their clients.

An early-selected neutral, with the agreement of both sides, could easily resolve issues such as (1) the order of taking depositions, (2) disputes over deposition locations, and (3) minor to moderate discovery disputes without the necessity of bringing motions and briefing issues that are easily handled in a telephonic conference, etc. By selecting a neutral at the commencement of the litigation, the neutral will become familiar with the basic legal issues and facts, thus enabling him or her to provide swift, efficient and cost-effective assistance to the attorneys.

Using this method, the parties can either agree that the neutral will only act as a “facilitator,” who attempts to get the parties to resolve their dispute by suggesting solutions to both sides. Or, if they wish, the parties can designate the neutral as the “decision-maker” for issues that they mutually agree should be presented to their neutral. The underlying concept is to create a method by which the parties can swiftly and cooperatively resolve the issues that normally arise in litigation.

By agreeing to this method, neither side makes any concessions. The selection of a neutral for this process does not represent a commitment to attempt to resolve the case at a later date. It simply represents an acknowledgement that both sides share equally in benefiting from finding the smoothest path to moving the case forward – whether to trial or settlement.