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

An Emerging Structure of ADR in Mass Torts and MDLs

The official statistics provided by the Judicial Panel on Multidistrict Litigation in recent years count Products Liability as nearly one quarter of all pending multidistrict litigations (MDLs), making it the largest category among all classifications.

Many of these Product Liability MDLs, especially pharmaceutical and medical device mass torts, continue to dominate headlines in mainstream and legal media. These mega cases dominate and potentially drain the resources of the courts, counsel and parties to the litigation. The magnitude of these matters, combined with the statistical likelihood of eventual settlement in nearly all of them requires focus on trends that facilitate resolution.

ADR has a longstanding role in resolving some of the largest and most high-profile matters. As with any evolving industry, ADR models were developed to streamline processes for the efficient resolution of disputes. This is certainly true within the context of mass torts, where a cooperative, working model has emerged because all stakeholders buy into its effectiveness. Continue reading

Resolving Complex Environmental Disputes

Lester Levy, JAMS mediator and arbitrator

Lester Levy, JAMS mediator and arbitrator

This article discusses early cooperation between parties and insurers in resolving complex environmental disputes. It summarizes strategies that recently succeeded in a six-way dispute over the costs of investigating and remediating an extended plume of PCP groundwater contamination. It moved rapidly from a traditional lawsuit to a voluntary mediation process aimed at identifying the most economical and reliable remedial approach to cleaning up the contamination, and allocating the costs of doing so among all parties. Although the parties agreed to refrain from traditional court-mandated procedures, they retained the right to try the case if the cooperative process was unsuccessful in resolving all disputed issues. Ultimately the process was successful and the need for trial was eliminated. Continue reading

My Class Action Checklist

Hon. Morton Denlow (Ret.)

Hon. Morton Denlow (Ret.)

For a number of years now, I have enjoyed successfully resolving complex class action matters. The cases are challenging, the counsel astute and the results rewarding.

I developed a class action checklist designed to assist my clients in thinking through the issues necessary to settle their class action case. The use of this checklist and the process it requests of counsel has allowed me to expedite the settlement of class action matters. Continue reading