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.

Make the Most of Your Mediation: The Neighbor Dispute

By Hon. Lynn Duryee (Ret.)

Hon. Lynn Duryee (Ret.)

Hon. Lynn Duryee (Ret.)

Disputes between neighbors are among the most blistering battles in the courthouse. As one advocate observed during a break in Day 3 of Hatfield v. McCoy, “At least in a divorce, one of the parties moves out of the house.” Like a divorce, neighbor disputes are expensive, emotional, and greatly in need of skillful resolution. Here are five tools lawyers and neutrals can use to settle these quarrelsome cases.

1. Engage experts to generate practical solutions. Regardless of whether the problem involves parking, property line encroachments, view obstructions, falling leaves or barking dogs, the right expert can help the parties focus on a fix rather than a fight. A design professional might come up with 50 solutions for a problem when a litigant sees only one. Even better, if the lawyers can manage to retain a joint expert, they can save their clients’ money – in shared expert costs – as well as grief. A respected joint expert can help the parties work together on finding a solution everyone can live with, and if the parties cannot agree on one, perhaps they trust the expert enough to ask for their recommendation.

2. Conduct a site inspection. Before the mediation, the participants should meet on site so that each neighbor can show the Neutral what the problem is and how they believe it can be solved. A site visit can help the Neutral understand what is most important to each party: Is it privacy, beauty, autonomy, peace? Is it parking, lighting, safety? The participants will be in a better position to negotiate solutions if everyone has a clear picture of the problems, site and potential solutions.

3. Help the parties trust the process. Commonly, warring neighbors enter mediation with a belief that the problem is 100% the fault of the neighbor, that the other guy is acting in bad faith, and that unless the neighbor is willing to move, resolution is impossible. This outlook makes it hard for each side to hear a different point of view. Lawyers can help their clients by modeling respect during the mediation. When an offer is presented from the adversary, listen to it carefully instead of dismissing it reflexively. When the Neutral describes the risks of going forward, support the Neutral’s concerns rather than taking issue with them. When the Neutral is comparing the last, best and final offer before going forward to trial, give the client a realistic assessment of the costs and risks of trial so that the client can choose wisely.

4. Allow sufficient time to mediate. When I teach mediation, I give students a hypo involving neighbors fighting over views and trees. In the hypo, the uphill neighbor hates the downhill neighbor’s trees because they block his view. The downhill neighbor loves the trees because they protect her from the uphill neighbor’s lights and noise. Students solve the problem in 5 minutes by agreeing to trim trees, move lights, and reduce noise. They are incredulous to learn that in real life, such a problem would likely take a day to settle. Why? Isn’t the solution obvious? Maybe. But people don’t like living their lives to suit their neighbors. They resent having to change something on their land to suit someone else. They are sometimes embarrassed to be involved in litigation over a problem they feel that they should have been able to settle without legal action. They feel like they are right and shouldn’t have to compromise. Perhaps they have spent a small fortune in fees and feel that they should be getting more for their money. These issues take time and sensitivity to sort through. Fortunately, once these issues are identified and discussed, parties can then find solutions almost as easily as my mediation students.

5. Be part of the solution. The lawyers most likely to achieve settlement in these emotional cases have gone out of their way to cultivate a professional relationship with opposing party. They have been able to exchange and appreciate the strengths and weaknesses of their own case as well as their opponent’s. They have counseled their clients on how stressful and expensive a trial will be and how unsatisfying its outcome is likely to seem. They have told their clients that what seems so important to them may not strike a judge or jury the same way. They approach mediation with a mind open to entertaining creative solutions. They keep discussions moving when discouragement creeps in. These are the lawyers whose clients are most likely to sign settlements and releases at the end of the day.

There are notorious neighbor cases that end in gunfire. There are sad ones that end with both parties selling their homes and moving elsewhere. Some go to trial and end up with a decision that seems to change nothing. And then there are those few that end with an agreement to trim the trees, try a little harder and maybe look the other way when the car is parked illegally.

They say that good fences make good neighbors. So too can good lawyers and mediations.

Diversity Matters

A casual look around the room at any major mediation conference will quickly confirm that women and minorities are still significantly under represented. It may be a long slow journey to create more representative panels worldwide, but one that is well worth taking.

According to the ABA in April 2016, nearly half of all law degrees issued in the United States in the previous academic year were to women. However, if you look at elite law firms, only 18 percent of the partners at the top 200 firms are women. Within that same environment the numbers of Black, Latino and Asian partners represent an even smaller percentage  Few statistics are available to identify how many mediators in the U.S. are women or from an individual ethnic group, but it is safe to assume that they likely parallel the statistics in the elite law firms.

In an area of law where nuance and creativity are most highly valued, including more women and more people from different cultural backgrounds can only enhance the success of mediations.  Creative problem solving, the ability to leverage different types of communications styles and a real sensitivity to important cultural issues are among the most important skill sets a mediator or arbitrator bring to a case.

The pool of neutrals available to hear cases should more closely reflect the demographics of the population they serve; this is one of the most important ways to ensure successful resolution of cases and the ongoing growth of mediation as a dispute resolution tool.  Training and developing a younger, more diverse group of mediators is one of the best ways to ensure that mediation continues to grow as a conflict resolution tool.

ADR providers like JAMS and others recognize the importance of increased diversity among ADR practitioners. They have challenged law firms, corporations and legal organizations to consider women and ethnically diverse neutrals, track their firms’ neutral selection process to measure progress and provide resources to diverse professionals on preparing for a successful career in ADR. Finally they encourage their clients to consider diversity in their selection of ADR professionals.

Early Mediation of Insurance Coverage Disputes

Bruce A. Friedman, Esq.

Bruce A. Friedman, Esq.

Mediation of insurance coverage disputes prior to the filing of a lawsuit is becoming more common.  In part, this trend is the result of ADR provisions in insurance policies that require that the policyholder and insurer mediate coverage disputes prior to engaging in litigation.  Some of these provisions provide that the mediation shall continue until the mediator declares an impasse.  Others have a cooling-off period after the mediation that preclude either party from filing suit for a period of time (90 days) from the date of a failed mediation.

While early mediation and resolution of disputes is a laudable goal, saving the parties the time and expense of protracted litigation, the question is whether early mediation can result in a resolution of the dispute.  There are a number of things that the parties can and should do prior to the mediation to enhance the possibility of success, which include the following:

  1. At least a month before the mediation, counsel for parties should discuss what they need to know in order to enhance the possibility of settlement. This may require an information exchange phase of the mediation.  Once you have set up your mediation, the parties can exchange documents and information under the mediation privilege with an agreement to return the documents at the conclusion of the mediation.  The information could include the production of the underwriting and claim file if the coverage dispute arises in the third-party liability insurance context; documentation of the extent of the loss; documentation of the financial condition of policyholder if the issue of collectability is raised by the dispute.  These examples are only illustrative to spark your thinking on what you may need to see in order to evaluate the risk and value of the case.  In some cases, early consultation with experts and an expert report may be very helpful and persuasive.
  1. Mediation briefs must be exchanged as early as possible in order for each side to evaluate the positions of the other. It is too late to wait for the mediation to learn all of the arguments of the other side in order to give the issues the proper consideration.  Exchange of briefs also enhances the meditation process by allowing the parties to directly address each other rather than relying on the mediator to be the sole interpreter and communicator of the positions of the parties.  It educates the opposing side to the issues raised by the case.  Exchange briefs at least a week before the mediation to allow time for counsel to discuss the issues with their clients and to hopefully arrive at some objective evaluation of the prospective lawsuit.
  1. Assuming that the parties are serious about the early mediation and want to attempt to settle the matter, then each side needs to come to the mediation with settlement authority. By that I mean taking off your advocacy hat in the preparation for the mediation and analyzing the likelihood of success.  I suggest that counsel discuss the issues with a colleague in the office who is not involved in the case who may provide a more objective view.  After all, while the mediator is not going to decide the case, a settlement is going to reflect the strengths and weaknesses of each sides positions and an objective evaluation of the issues is crucial to arriving at a settlement.  Other factors in early resolution such as the cost of money, the saving of litigation expenses, and business reasons for resolving the dispute are all fair game for discussion and evaluation of the settlement value of the case, but they are not substitutes for objective risk assessment and the money necessary to get the matter resolved.

One more issue that needs to be considered in connection with the early mediation of insurance coverage disputes arising in the third-party liability insurance context is whether the insurance coverage issues can be resolved without the resolution of the underlying lawsuit against the policyholder.  If the early mediation addresses the duty to defend the underlying suit, then there is no reason to delay in mediating the issue.  However, if the intent of the insurance mediation is to resolve indemnity for loss arising out of the underlying litigation, then it is highly unlikely that the parties will be in a position to resolve the coverage issues without knowing the extent of that loss.  Under these circumstances, I strongly suggest that the mediation of both the coverage issues and the underlying case occur simultaneously.  The coverage issue may be a tool in the resolution of the underlying case and the cost of the third-party settlement will have a significant effect on the resolution of the coverage dispute.

Bruce A. Friedman, Esq. is a JAMS neutral, based in Southern California. He is an accomplished dispute resolution professional who has mediated and arbitrated a wide range of disputes, including insurance, class action, professional liability, business, real estate and entertainment and copyright matters. He can be reached at bfriedman@jamsadr.com.