FAQs ABOUT OUR MEDIATION PROCESS
It is common knowledge that the sheer number of commercial disputes generated by contemporary society cannot be effectively managed by our current legal system. The historical absence of an efficient way to resolve litigated disputes in their early stages had disastrous repercussions in both private and the public sectors. Businesses, large and small, not infrequently, have been forced into reorganization or bankruptcy simply due to the inherent costs and extensive delays of protracted litigation compounded by hopelessly back-logged courts.
Thirty-five years ago, when I began my practice, Insurance companies underwriting commercial policies reported they were spending in excess of $400 million annually on legal and expert costs alone, long before indemnification dollars were even calculated, much less authorized and spent. Corporations to this day employ - at enormous cost - legions of corporate and outside counsel to pursue or defend causes of action that get tied up in the courts, while smaller businesses and much-needed public services/protections are put on indefinite hold.
The introduction of Commercial Mediation into the Civil Litigation Arena has provided part of an answer to the perennial question: ‘Why can't the financial resources exhausted by underwriting judicial tangles be spent directly on resolving the disputes themselves? By introducing Mediation early in the life of a dispute, parties and stake-holders are now increasingly able to make reasoned assessments about the range of probable outcomes of litigation while safeguarding strategically sensitive information, and reviewing optional ways to resolve their disputes.
Even though there are numerous examples of mediations successfully conducted at both pre-filing and pre-appeal stages, the most strategically sensible timing to introduce mediation seems to be when approximately ten percent of formal discovery has been accomplished. Actual depositions may not need to have been initiated, much less completed, but parties, counsel, carriers, and, or experts must have had sufficient time and access to review factual information so that they are in a position to situate themselves in realistic negotiating positions.
Cases involving the participation of expert consultants can become "mediation-ready" as soon as preliminary investigative reports have been completed and reviewed.
In a case where all parties have agreed to mediate, most mediation firms will take on the task of securing a mutually acceptable time, date, and location, free of charge.
If all parties have not agreed to mediate in a multi-party case, most qualified private mediation firms will work to secure the agreement of all necessary parties at no additional cost. In this case, the only information that an initiating party needs to provide is the name, address, and phone number of each individual whose participation is required for a comprehensive settlement to be realized.
Because professional mediation in commercial cases is a relatively new field, many counsel (as well as parties, carriers, and experts) may have had limited mediation experience and, unhappily, some of those who have participated in previous mediations may have suffered at the hands of inexperienced of un-qualified mediators. As a consequence, the suggestion of mediation as a tool for settlement can meet with some understandable resistance. Furthermore, given the strategically sensitive nature of information in most litigations, counsel are dutifully reluctant to select a mediation service unless its competence and neutrality can be reasonably assured. Using the track record of a successful mediation service will help provide a standard against which counsel may evaluate another firm's service. A professional mediation firm will also be able to provide parties with a seasoned view of the benefits and/or safeguards built into a well-managed, mediation procedure.
An additional consideration is that opponents embroiled in a dispute are often reluctant to accept recommendations from their adversaries. They are more apt to accept the guidance of a successful, independent mediator whose ongoing professional reputation depends on securing beneficial results for all sides. Therefore, parties seeking agreements to mediate will benefit from engaging an established mediation service, with national mediation experience and a solid reputation with multiple insurance carriers and nationally-known law firms. A qualified private mediation firm will secure parties' agreements to participate in and co-fund mediations in the majority of all cases referred.
Although most major cities have mediation services listed in their yellow pages, including retired judges or the local chapter of the American Arbitration Association, many of these service providers may have panel members who only act as mediators on a part time basis and therefore may not possess the level of experience or skill that the complexity of your case requires. Mediation, like all fields, requires specialized training and experience; therefore, having served as a judge or having practiced law may not, in and of itself, qualify someone to provide mediation services. Be sure your selection of a mediator is based on solid, objective criteria (e.g. depth of experience track record, references, success rate etc.)
Once agreements to mediate have been secured from all sides, there are some important pre-mediation steps that should be undertaken.
Pre-Mediation Strategic Planning:
1) Counsel should make certain that any critical information with which their own team needs to be conversant has been reviewed and understood well in advance of the mediation date. Critical information could include documents, deposition transcripts, expert reports, and case summaries. Team members might include principals, insurance professionals, and experts. Ideally, counsel should convene pre-mediation meetings between team members in order to decide on the priority of their objectives, their negotiation strategy and then how they wish to present their position in the opening joint session of the mediation.
2) Counsel should prepare their own case notes so that they can effectively present their party's negotiating position in the opening joint session of the mediation. This summary should minimally include their party's public negotiating position, describing their view of the facts & of relevant questions of law, liability, and damages.
3) When possible, counsel should convey any damage summaries, alternate repair methodologies, or clarifying documentation that they believe will help opposing counsel to come to the negotiating table better prepared to negotiate realistically.
Counsel may, understandably, elect to withhold certain strategically sensitive information, which they can do at their own discretion. However, it is important to understand that the goal of the opening joint session of a mediation is to provide parties with an opportunity to be directly persuasive in presenting their positions to the principal decision-makers of their adversaries. This objective cannot be fully realized if counsel unnecessarily withhold pertinent or clarifying information required for those decision-makers to fully appreciate the relative strengths or weaknesses of their own positions in the case.
Counsel may also elect to have their experts participate in portions of the opening presentation and the private caucuses. This can be particularly helpful in cases involving complex technical, economic, or medical issues. If such use of experts is contemplated, consultants should come prepared to disseminate appropriate supporting information so that technical issues can be fully understood.
Formal written mediation briefs are not always a requirement for mediation to be effective. However, if counsel so elect, those briefs should be disseminated at least 10 days in advance of any mediation date and should be no greater than 10 pages in length (not including exhibits).
The Players:
Each party minimally involves the participation of two people, client and counsel (except when a party is en pro per). Frequently, a party's team may consist of several players, each essential to the mediated/negotiation process:
• Experts to present or evaluate technical issues.
• Principals most familiar with the factual events being disputed.
• Insurance professionals with actual settlement authority.
• Counsel managing the legal and strategic issues in both the
negotiation process and the litigation.
There are often coverage issues (or litigations) riding piggyback on, or underlying the disposition of a case at hand. In such a case, coverage counsel, principals, and special carrier representatives may also be required to attend in order for a comprehensive settlement to be realized.
Opening Joint Session
A mediator will generally kick off the initial joint session with introductions of all attending participants and by presenting a brief procedural sketch of the mediation protocol, including an explanation of the confidentiality agreement.
After the mediation roster and confidentiality agreement have been circulated and signed, the mediator will usually call on each counsel to give a brief summary of their position, starting with plaintiffs counsel.
It is the standard custom and practice of most professional mediators to provide a verbal summary following each party's presentation, based on the mediator's simultaneous notations. This is done in order to provide the assurance that the positions as presented were fully understood. The mediator will quickly recap the counsel's initial position, providing all parties with the opportunity to hear presented positions for a second time.
After the presentation of initial negotiating positions, parties may wish to have the mediator extend the utility of the joint session by fielding clarifying (non-argumentative) questions indirectly through the mediator.
During these informal exchanges and facilitated dialogue, the mediator remains ever vigilant to ensure that the Q & A process remains productive
At the end of the joint session, the mediator will usually announce the schedule for the first round of confidential caucuses.
The purpose of these private sessions is 3-fold:
They give the mediator an opportunity to hear any information that might be relevant for working towards a resolution that parties may have thought imprudent to disclose in the joint session in front of the other participants.
Once having heard a round of this more confidential information, the mediator will play devil's advocate, where appropriate, so that each party will be left with as balanced as possible assessment of their position in the case, so that, in turn:
Any realistic options for settlement can be reviewed without parties having to change any publicly stated negotiating position.
A final joint session is usually convened to summarize the terms of settlement or, alternately, to secure agreement on the next steps the parties wish to take in a continuing effort to resolve the matter out of court. Parties frequently authorize the mediator to conduct follow-up phone work should a final resolution not be achieved during the face-to-face mediation session.