A Mediator’s Pleas(e)

By: Hon. Richard A. Levie (Ret.)

Hon. Richard A. Levie (Ret.)

Hon. Richard A. Levie (Ret.)

As counsel, you have represented clients in hundreds of mediations. You have taken courses in the art (it certainly is not science) of mediation. Perhaps you even have served as a mediator. In your role as an advocate, you know the importance of being able to think like your opponent and to anticipate the reaction, response, next reaction and response and so on. Applying a layperson’s understanding of physics – every action will have an opposite reaction (it may or may not be equal but there will be a reaction).

A mediator is placed between the action and reaction – sometimes leading, sometimes following. By thinking about the physics of a mediation and your role in it, you have the ability to maximize the opportunity to use the mediator to assist in reaching a resolution. The key, however, is to understand (and anticipate) the mediator, as well as the other party in the process.

Listed below are one mediator’s pleas(e) for counsel to most efficiently use the mediator and mediation to achieve a resolution.

Pleas(e) #1: Consider the attitudinal setting of the mediation – confrontational versus conciliatory. Notwithstanding each party’s belief (at least as expressed to a client) that it has strong, winning arguments, the reality is that the other party also has arguments. Indeed, the opposing party likely has precisely the same view of the case.

Because the opposing party probably has highly competent counsel and confidence in its position, the likelihood of a settlement-inducing response from the other party to table pounding and bombast is something less than zero. The reality is that a party almost never “caves” in response to a table pounding presentation. More likely, the presenting party will guarantee immediate resistance to settlement and engagement in re-evaluation of one’s positions and the process of mediation. While such resistance is not necessarily fatal to reaching a resolution, at a minimum it does prolong the mediation in terms of time and cost to the clients.

Please appreciate the difference between a conciliatory attitude and the chance of conciliation being viewed as a lack of confidence and fear of going to trial most assuredly are in the less than zero category. If a client does not appreciate the attitudinal issues for mediation purposes, consider a pre-mediation phone call or meeting with the mediator. Let the mediator be the message carrier about the importance of attitude in mediation.

One can be conciliatory in tone, word choice and subjects chosen for discussion in ways that do not suggest weakness. Pleas(e) – consider an even toned “matter of fact” presentation of facts and legal positions. Pleas(e) be sensitive to the persons sitting across the table from the presenting party. If the alleged “wrongdoer” or the writer of the contract on which the dispute is based is sitting at the table, be sensitive to their presence and make remarks that are factual “if we need to go forward, it may/will be necessary to prove ….” Accusatory statements have no place at a joint session if one wants to make the mediation as productive as possible in the shortest amount of time. Even in the absence of a sudden “you’re right” response, such a presentation initiates and fosters an attitude and environment for compromise.

For more on Mr. Levie’s discussion on A Mediator’s Pleas(e), please read the full article from Law.com by clicking here.

Mediation Advocacy – Countdown to a Successful Mediation

By: Barbara Reeves Neal, Esq.

Barbara A. Reeves Neal, Esq.

Barbara A. Reeves Neal, Esq.

Lawyers and mediators sometimes fail to appreciate that a mediation requires as much advance planning and consideration of strategy as a trial. Too often, lawyers (and some mediators) pick up the file a day or two in advance (at best) and wing it, relying on their advocacy skills and smarts to negotiate their way through the mediation day. This approach does not serve the needs of everyone involved. By using the following mediation countdown, everyone will come to the table prepared.

1. Develop a Timeline

Using the tools below, if you are counsel representing a party, decide when you want the mediation, and then plot your timeline just as if it were a trial date. List all the tasks you need to do: prepare case analysis; educate clients on the mediation process and their role; and identify client positions and those of the other side. Be sure to allow for significant trial events and dates or any post-session follow-up.

2. Selection of the Mediator

Do not restrict yourself to the mediator your colleagues have always used – ask them whether their recommended mediators got the matter settled to their satisfaction. Ask whether they and their client enjoyed, or at least appreciated, the process with that mediator. Consider agreeing to a mediator recommended by the other side – presumably that is someone to whom they will listen.

3. Talk with the Mediator in Advance

Pre-mediation communication with the mediator ensures that there are no last-minute surprises in terms of which parties will attend and the format or process to be used.

4. Identify the Right Participants

Select a knowledgeable client representative who has the authority to settle the matter, even if it takes some creativity. Then ask the other parties who their representatives will be.  They may this, although they should. If one party feels that the other’s representative is not knowledgeable or does not have authority, they may not listen to anything coming from that side of the table. If there are multiple parties on one side of the case, they should definitely confer about their representatives.

5. Risk Assessment Steps

Objectively evaluate the best result, worst result, and other potential scenarios and spend time making sure that all the decision-makers and client representatives understand the evaluations and agree with them.  If there is a difference of opinion amongst client stakeholders, this must to be addressed so that mediation counsel and the mediation representative have clear direction.

For more on this discussion on Mediation Advocacy – Countdown to a Successful Mediation, please read the full article from Law.com by clicking here.

It’s All About that Clause, ‘bout that Clause

Bruce A. Friedman, Esq.

Bruce A. Friedman, Esq.

By: Bruce A. Friedman, Esq.

As a former trial lawyer, I know well the unpopularity of arbitration among litigators. The list of reasons rolls easily off the tongue of any experienced trial lawyer:

  1. The arbitrator does not have to follow the law;
  2. There is no right to appeal;
  3. There is the absence of case determinative motions;
  4. Discovery is limited or not available;
  5. Arbitration is as expensive as litigation;
  6. The rules of evidence do not apply;
  7. The belief that arbitrators are prone to split the baby.

Now that I have become a neutral serving as an arbitrator, my perspective on arbitration has changed.  If done right, an arbitration is an efficient procedure for resolving cases.  The differences between arbitration and litigation are more nuanced than the general criticism of arbitration. The issue is not black and white.  There are many attributes of arbitration worthy of even a jaded trial lawyer’s consideration:

  1. An arbitration can be confidential;
  2. A party and counsel have input into the choice of arbitrator;
  3. An arbitrator can be required to follow the law;
  4. There can be an appeal of an arbitration award;
  5. Arbitration can be streamlined and less expensive;
  6. Or, arbitration can include discovery;
  7. An arbitrator can consider case terminating law and motion;
  8. The rules of evidence can apply;
  9. Hearing dates are final in an arbitration. There is no hurry up and wait that one finds in the crowded courthouse;

All of the foregoing attributes of arbitration, however, can only be achieved if the arbitration clause is properly drafted to provide for them.

  1. The clause can provide that the arbitration is confidential;
  2. It can require that the arbitrator follow the law of a given jurisdiction;
  3. It can require a reasoned decision;
  4. There can be an appeal process in the clause with one to three or more former appellate justices;
  5. The qualifications of the arbitrator can be set forth in terms of a former judge, or a certain level of legal and/or industry experience;
  6. The clause can provide the arbitrator with authority to decide case terminating motions such as motions to dismiss or summary judgment;
  7. The clause can provide for discovery co-extensive with the Federal Rules of Civil Procedure or a designated state or streamline discovery by limiting it or eliminating it;
  8. The clause can provide that the rules of evidence will apply to the proceeding.

For more on Mr. Friedman’s discussion on It’s All About that Clause, ’bout that Clause, please read the full article from Law.com by clicking here.

Neutral Analysis and Second Opinions

Kim Taylor, Esq.

Kim Taylor, Esq.

By: Kimberly Taylor, Esq.

Corporate counsel—under seemingly never-ending pressure to contain costs—have a wide array of dispute resolution tools available to them, including negotiation, mediation, arbitration and litigation. There are other devices, however, that merit consideration at any stage of a dispute.

In many places ADR has lost its novelty now that mediation and arbitration are firmly entrenched in the legal lexicon. In some jurisdictions, virtually every civil matter is mediated at some point on the way to the courthouse, or the arbitration venue. The value of mediation is well known. It is effective, resulting in settlements in most cases. It is confidential, delivers time and cost savings, helps to preserve relationships and gives users much-needed control and predictability in the face of the unpredictability of litigation outcomes. Arbitration also offers control, flexibility and confidentiality.

What about those cases where the stakes are so high and positions so entrenched that business leaders are unwilling or unable to negotiate a settlement? Is there a place for other alternative forms of dispute resolution? Astute counsel are increasingly turning to a variety of neutral analyses exercises to aid in the evaluation and ultimate resolution of their legal matters.

Neutral evaluation or analysis is, simply put, a non-binding process used when multiple parties or a single party to a dispute seeks the advice of an experienced third-party neutral concerning the strengths and weaknesses of their cases. The neutral may meet with all or one of the participating parties and receive documents as agreed, review factual and legal positions, evaluate what a likely outcome might be, and provide his or her view—usually in written form—of the likely result. In some cases where the neutral is acting on behalf of all parties, the neutral may also attempt to facilitate a settlement through mediation.

Another form of neutral analysis is mock trial. This is involves the presentation of one or more components of a trial including evidence (documents, witnesses, demonstrative), opening and closing statements and closing arguments in a simulated trial before a mock jury or judge. The judge and/or mock jury provides input regarding the impact of the evidence and arguments, and the strengths and weaknesses of the case. A similar process can be used for mock arbitrations, and neutrals may also be called upon to provide neutral assessments or analysis involving summary judgment and other motions or hearings. These processes can and do yield valuable opinions that help shape the presentation of evidence and arguments at the actual trial or arbitration.

For more on Ms. Taylor’s discussion on Neutral Analysis and Second Opinions, please read the full article from Law.com by clicking here.