PROACTIVE MEDIATION

Joe Epstein and Steve Berkowitz
Proactive Mediation, October/November
1999 Trial Talk, Vol. 48, Issue 5 p. 13

 

Introduction

 

          Attorneys work on deadlines.  A mediation is scheduled for the 25th.  Confidential Settlement Statements are due on the 18th.  All too often the attorneys and the mediator are thrilled if the Confidential Settlement Statements come in by the 23rd.  The parties and counsel come in on the 25th.  The attorneys expect the mediator to know their case nearly as well as they do except that the mediator is not to perceive all the weaknesses they have with their case nor the depth of those weaknesses.  The parties, depending on their sophistication and background, may have had extensive background with negotiation and mediation (e.g. adjusters & businessmen) but others come in with little or no experience with the mediation process (e.g. plaintiff(s) in personal injury cases).  Frequently, parties have a strong personal investment in their case.  Notwithstanding the emotional connection many people have with their case, we often ask them to trust and listen to a mediator that they have never met before.  They are to trust a mediator who their advocate wants to be fair, impartial but favorable to their client.  Most people come to mediation with the hope and expectation that there will be "closure".  Some are content if they leave with a discovery plan or free discovery but most are looking to get their case resolved.  The best way to assure closure is for everyone--parties, decision-makers, attorneys, adjusters and mediators--to come to the mediation prepared.  Proactive mediation is designed to have parties, their advocates and the mediator ready for closure.

 

What is Proactive and Creative Mediation?

 

The Paradigm Shift

 

The paradigm many ADR providers start with is the automatic delivery of standardized alternate dispute resolution services.  Typically, there is little communication between the consumer of ADR services and the ADR provider about the structure of the process or the anticipated dynamics of the dispute resolution process.  More often than not, the ADR specialist and the advocates do not design the ADR process.  Too often the premeditation process is rote and sterile.  In contrast, proactive mediation brings energy and creativity to the mediation process even before the parties get to the table.

 

Dynamic Pre-mediation

 

          Proactive mediation requires that parties ask, "When do I use ADR?" and "What is the best form of ADR Design for this case?"  Decisions about design impact the answer

 

on the timing question. Proactive mediation requires analysis of these issues. In all but the most routine case, advocates and the ADR specialist should confer when or shortly after a case is first set for mediation in order to determine the best ADR process for a particular case.  Proactive mediation requires that advocates and the ADR Specialist design the appropriate ADR process to fit the specific case.

 

For example, in large commercial or health care cases there may be a decision to have parallel mediation and arbitration going at the same time.  The latter creates the pressure to get to "closure" in the mediation.  The former might allow the parties to carve out some issues from the arbitrator and put them into mediation.

 

          Similarly, in some other instances (e.g. personal injury, smaller commercial cases) parties have opted for a "med/arb same" process in order to enhance the neutral's power and the neutral's ability to get the case closed.  In some instances, a mediator learns with the initial case setting, in a pre-meditation status conference call, or in a later follow-up call that the parties have not adequately prepared their opponent or themselves.  In such instances, it may make sense to postpone the mediation in order to get the IME done, the economist's report distributed or critical depositions completed.

 

          In other instances (e.g. employment cases and professional negligence cases), a pre-mediation conference between the mediator and the advocates may result in a decision for a staggered start for the mediation. In other instances, the decision may be that the ADR specialist should conduct pre-mediation caucus with each party before the scheduled mediation.  The pre-mediation caucus provides the mediator with an opportunity to develop trust and rapport and to identify important issues (legal, factual, and personal) before the mediation.

 

          Party preparation is an essential mediation dynamic.  Client preparation begins with the initial case intake.  Along with the retainer agreement and the disclosure statement (if applicable), clients should be provided with an ADR Disclosure Form describing the different forms and varieties of ADR.  Discussion about the ADR Disclosure Form provides an opportunity to start thinking of the ADR forum best suited for a particular case.  It is never too early for an advocate to start the process of exploration necessary to get to their client's underlying interests and concerns.  For a business client there may be an interest not only settling the immediate dispute; but also, in establishing an ongoing early and less costly dispute resolution process for future repetitive conflict issues.  For an accident victim an apology and acknowledgement of the impact the accident has had on the plaintiff may be important ingredients for a settlement.

 

          Advocates should analyze other pre-mediation considerations.  Do you and your opponent want a facilitative or an evaluative dispute resolution process?  In other words, do you want mediation or a settlement conference?  Do the parties want a hybrid process that starts out facilitative but becomes evaluative when the parties are getting stalled?  Do the parties want a neutral to share his/her case evaluation?  If so, when should the mediator's evaluation be revealed? How should that evaluation be conveyed? Should the evaluation merely be in the form of telling either or both parties that they are in or outside the range of reason? Does being evaluative mean strongly challenging one party's evaluation in a private caucus? Parties need to be sensitive to these issues and appreciate that there are no "pat" answers.

 

          Advocates need to considered whether most, if not all, of the disputed issues can be resolved by mediation and whether some can be resolved by med/arb.  Advocates should consider whether their case is an appropriate one for utilizing a special master for discovery disputes.  Is this the right case for med/arb?  Does my client need a reality check?  When is this needed?

 

Proactive mediation requires that the advocate work with his client before the mediation to establish an overall settlement goal, a mediation plan and a case theme.  Tactical and thoughtful decisions need to be made about demonstrative exhibits, the contents of the confidential settlement statement, who will attend the mediation and whether a pre-mediation caucus would be helpful.  Before the mediation parties should try to determine a reasonable settlement range, their opening position, then the likely opening position of the opposing party, their bottom line and the opposing party's likely bottom line.  Parties should plan their negotiation strategy and try to anticipate the negotiation strategy of the opposing party.

 

          Proactive mediation also requires careful consideration of when to use mediation. For example, in business disputes between businesses (with an ongoing income generating business relationship) the best settlement strategy usually is to bring the parties to the table as soon as possible-before the business relationship is permanently poisoned.  The parties might consider independent fact-finding, mediation or med-arb.

 

          If the parties have an employment dispute involving a high profile defendant, they should consider using an ADR process before the publicity arrow has left the quiver.  Once the publicity arrow has been fired, positions, at least on one side, may harden and may frustrate settlement.

 

          In personal injury cases and professional negligence cases, the parties have to exchange enough information to allow a reasonably fair analysis of the case.  Sometimes such an exchange of information can occur without the formal filing of a claim. In other instances, key depositions need to be taken before the parties can effectively come to the table. Problems associated with last minute resolution include the hard costs of the litigation process, the human costs on the parties, the enmeshment of counsel and client.

          In deciding, when to use ADR, each case requires analysis of the relationship of the parties, the information reasonably required for resolution, the costs (economic and non-economic) associated with the litigation process and the approximate value of the case.  Generally, parties can use ADR sooner rather than later and proceed with 85% of the "required" information.

 

Dynamics at the Table

 

          Who should come to the mediation table?  Have the advocates and the mediator considered this separately and together?  Advocates need to identify the actual decision-makers on both sides of the case.  Generally (but not always) it is best to have the decision-makers at the mediation table.  Thoughtful advocates and mediators appreciate that a decision-maker distant from the mediation scene has less of a feel for the on-going dynamics of the mediation process than the people at the scene. 

 

In medical malpractice cases, the defendant doctor should not avoid the conflict and should be present.  The physician's advocate should discuss the consent issue and the risk of an excess verdict with the physician before the mediation.  Private counsel may be available by telephone or present as appropriate.   If there is a difference of opinion between retained defense counsel, the adjuster, the physician and/or private counsel these differences need to be addressed before and during the mediation.

 

 If there is a significant subrogation claim Plaintiff's counsel should have dealt with the problem before the mediation or have arranged to have the decision-maker for the lien holder present at the mediation or availably by telephone.  The presence of a wife, mother, father, parent, child or sibling may be necessary to facilitate the claimant's decision-making.  Sometimes such persons are the behind-the-scenes decision-makers. Frequently, it is best to get such people in front of the curtain.

 

In some instances, it may be helpful to bring neutral experts to the table.  In larger cases, I have started a practice of asking the parties if they have considered using a structured settlement as part of the dispute resolution process.  If they have and if both parties think it will facilitate closure, I bring a neutral structured settlement person to the mediation.

 

          Most parties come to mediation hopeful if not expecting that they will settle their case.  However, parties should be mindful that there are secondary reasons for using mediation.  If an advocate is observant and willing to listen these are secondary benefits can be maximized.  Mediation may resolve part, if not all, of the case.  In caucus, if not in general session, counsel can test his theory of the case or defense.  Counsel may get a better feeling for his own client and the opposing party as witnesses.  The settlement and mediation process may serve as a reality check on expectations.  Counsel may elect to use the mediator as a conduit for the delivery of the "bombshell" or "smoking gun".  Mediation, particularly in smaller cases, may serve as the precipitator of early informal discovery.  In other instances, it may serve as a forum for developing a discovery plan.  Alternatively, in complex cases, the parties might opt to have the mediator serve as the special master for discovery.  On a positive note, mediators may be utilized to pull the punch on harmful information, initiate creative settlement proposals and develop a bracket for high/low arbitration.

 

          Parties should not only consider who should be at the table but they should also consider how to stage the table. For example, have the parties and/or the mediator considered using a staggered start? A staggered start, typically with the plaintiff going first, may serve to replace the pre-mediation caucus, which can be difficult to schedule. By visiting with the parties before the general session the mediator has the opportunity to develop better report with all parties and develop a better sense of how to structure and focus the mediation. Should there be a general session? What should the format of a general session be in a particular case? Parties need to consider whether  "opening statements" would be helpful or harmful to the mediation process. Would a joint focused start directed to an exploration of differences regarding specific issues be helpful? Advocates experienced in proactive mediation will be asking questions like these from the throughout the mediation process.

 

CONCLUSION

 

          Advocates need to put the same time, creativity, thoroughness and energy into the ADR process that they put into trial preparation.  Consumers of ADR services should be involved in the design of the ADR "product" and should be open to all the potential benefits to be derived from the ADR process.m